The Commissioner Of Income Tax-V, Pune v. Kirloskar Oil Engines Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTIONINCOME TAX APPEAL (LODGING) NO.1924 OF 2012 The Commissioner of Income Tax-V, PuneVersus Kirloskar Oil Engines Ltd. .. Appellant .. Respondent Mr.Tejveer Singh for the Appellant.Mr.S.N.Inamdar, Sr.Advocate with Mr.Mihir Naniwadekar for the Respondent. CORAM : J.P.DEVADHAR &M.S.SANKLECHA, J.J. DATE : 11[th] FEBRUARY, 2013. P.C. In this appeal, the Revenue has raised the following questions of law, for our consideration; (i) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in granting relief pertaining to income tax to the assessee following the order of BIFR, when neither the Income Tax Department was made a party by BIFR nor any opportunity was granted or consent taken before finalization of the proceedings before BIFR as contemplated in Section 192s(2) of SICA, 1985 ? (ii)Whether on the facts and circumstances of the case and law, the Tribunal was justified in granting the relief to the assesee following the order of BIFR, when the assessee itself had not complied the directions given by BIFR as far as filing of Return of Income is concerned ? 2.(i)So far as Question (i) is concerned, the only grievance of the revenue is that the Tribunal was not justified in upholding the order of CIT (A) that the Department is bound to give effect to an order of the BIFR for the reason that the order dated 19.8.2003 of the BIFR was an ex-parte order without having given a hearing to the revenue. It is an admitted position that the order dated 19.8.2003 of the BIFR was passed on the merger of M/s.Shivaji Works Ltd. with the respondent-assessee. (ii)It is also not disputed that the revenue has to in terms of Circular dated 16.2.2000 issued by CBDT to give effect to the order passedbytheBIFRunderapprovedschemeof reconstruction/rehabilitation. Thus the revenue is barred from sitting in the Appeal over the BIFR order. (iii)The Commissioner of Income Tax, (Appeals) as well as Tribunal have reached the finding of fact that revenue chose not to appear before BIFR inspite of having been given an opportunity and sought adjournment. Thus the Tribunal held that it would not be correct to state that the revenue was not given any opportunity to appear efore the BIFR. In any view of the matter the order of BIFR dated 19.8.2003 has not been disturbed by any Higher Forum. Therefore the revenue was bound to follow the same. In these circumstances as the decision is based on a finding of fact, we see no reason to entertain the proposed Question (i). 3.So far as Question (ii) is concerned, the Counsel for the parties state that above question does not arise from the order of Tribunal. This is so as this issue was not raised before the Tribunal or before C.I.T (Appeals). Thus we do not entertain the Question (ii) also. 4. Accordingly, the appeal is dismissed with no order as to costs. (M.S.SANKLECHA,J.) (J.P.DEVADHAR, J.)