The Commissioner Of Income Tax – Ii, Pune v. Shri Jaykumar Uttamchand Pokarna, Pune

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.499 OF 2013 The Commissioner of Income Tax – II, Pune Versus Shri Jaykumar Uttamchand Pokarna, Pune ..Appellant. ..Respondent. Mr.Vimal Gupta, Senior Advocate with Mr.Vipul A Bajpayee for the appellant.None for the respondent. CORAM : J.P. Devadhar &M.S. Sanklecha, JJ. DATE : 3[rd] April 2013 P.C. : 1.In this appeal by the Revenue for assessment year 2004-05, following questions of law have been proposed for our consideration. “a)Whether, on the facts and in the circumstances of the case and in law, the Tribunal erred in failing to appreciate that the assessing officer issued notice under Section 153C for Ays 1998-99 to 2004-05 only on receipt of letter dated 5-6-2007 from the Additional Commissioner of Income Tax, Range – 2, Pune, the Assessing officer of the searched person, communicating his satisfaction for issue of notice under Section 153C ?law, the Tribunal erred in failing to appreciate that the assessing officer issued notice under Section 153C for Ays 1998-99 to 2004-05 only on receipt of letter dated 5-6-2007 from the Additional Commissioner of Income Tax, Range – 2, Pune, the Assessing officer of the searched person, communicating his satisfaction for issue of notice under Section 153C ? b)Whether, on the facts and in the circumstances of the case and in law, the Tribunal erred in failing to appreciate that the assessment completed without following the prescribed procedure is only a procedural irregularity and should not render the assessment ab law, the Tribunal erred in failing to appreciate that the assessment completed without following the prescribed procedure is only a procedural irregularity and should not render the assessment ab initio void ? c)Whether, on the facts and in the circumstances of the case and in law, the Tribunal erred in rendering the assessment void ab initio merely on the technical ground without going into the merits of the case ?” 2.By the impugned order, the Tribunal allowed the claim of the respondent – assessee by following its decision in the matter of Shri.Akhil Gulamali Somji dated 30[th] March 2012. The Revenue, being aggrieved by the order of the Tribunal in the matter of Shri.Akhil Gulamali Somji dated 30[th ]March 2012, preferred an appeal to this Court being Income Tax Appeal (L) No.1416 of 2012. This Court by its order dated 15[th] January 2013 did not entertain the appeal filed by the Revenue on the ground that the Tribunal had recorded a finding of fact that no prior approval of the Joint Commissioner of Income Tax was taken prior to the Income Tax Officer passing the order. 3.In the present case also, the Tribunal by the impugned order recorded a finding of fact that no approval has been taken either from the Joint Commissioner of Income Tax or the Additional Commissioner of Income Tax before completion of assessment by the assessing officer. In view of the aforesaid finding of fact recorded in the impugned order being identical to the finding of fact in the case of Shri Akhil Gulamali Somji, which this Court refused to entertain by order dated 15[th] January 2013, we see no reason to entertain the proposed questions of law. 4.Accordingly, the appeal is dismissed with no order as to costs. (M.S. Sanklecha, J.)(J.P. Devadhar, J.)