The Commissioner Of Income Tax-V v. Thermax Ltd

bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 2619 OF 2011 The Commissioner of Income Tax-V … Appellant v/s THERMAX Ltd. … Respondent Mr.N.N. Singh for the appellant. Mr.Sanjiv M. Shah for the respondent. CORAM: S.C. DHARMADHIKARI & G.S. KULKARNI, JJ. DATED : 30TH APRIL, 2014 P. C. : 1This is an appeal filed by the revenue. It challenges the order passed by the Income Tax Appellate Tribunal dated 20[th] May, 2011. The substantial question of law is stated to be the one framed at paragraph 5 of the memo of appeal. 2Upon query from the Court, the learned counsel Mr.Singh submits that, if the manner in which this question is framed is not appealing to the Court, then, time may be given to him to re-frame this question and thereafter he would proceed to satisfy the Court that the present appeal raises a substantial question of law. 3We do not appreciate such a course at all. The appeal is filed in this Court on 24[th] November, 2011. Nothing prevented the counsel from correcting the memo of appeal and if necessary for re-framing the question of law. It is only when the Court raises the query to the learned counsel that an attempt is now made to convince the Court that the appeal raises substantial question of law but it has not been formulated properly. We asked Mr.Singh a question which goes to the root of the matter. We asked him as to how and why the exercise undertaken by the Tribunal can be said to be raising a substantial question of law. Our query was in the context of the undisputed facts. The assessee is a Company engaged in the business of manufacturing and selling of steam boiler. It filed the return of income for the assessment year 1997-1998 on 29[th ]January, 1998 declaring a total income of Rs.24,86,06,650/-. The Assessing Officer passed an order under Section 143(3) of the Income Tax Act, 1961, dated 30[th] March, 2000. The assessment was re-opened under Sections 147 and notice under Section 148 was issued on 20[th] March, 2002. Therefore, an order was made on 31[st ] : 3 : March, 2003 with an assessed income of Rs.39,57,16,390/-. Aggrieved by this order dated 31[st] March, 2003, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) allowed the appeal of the assessee on 20[th] May, 2011. The revenue challenged the same and the Income Tax Appellate Tribunal had dismissed revenue's appeal by the impugned order. 4The essential finding and which is of fact is that the assessment could not have been re-opened in the manner done by the Assessing Officer. When the assessee had disclosed all the details, particulars and the income was assessed, then, mere change of opinion would not justify passing of the impugned order dated 31[st] March, 2003, is the conclusion reached concurrently in this case. It is in that context that the Income Tax Appellate Tribunal and the Commissioner of Income Tax (Appeals) observed that the Assessing Officer failed to reach the requisite satisfaction. His belief should be in accordance with statutory provision and must meet requirement thereof. An order of the present nature could have been passed on the mere change of opinion. The Tribunal has, in paragraph 53 of the order under challenge, precisely found that the revenue is undertaking an exercise which was not permissible in the given facts and circumstances. The assessment years under consideration, namely, 1993-1994 to 1997-1998, the assessee disclosed the income and on identical lines that was assessed. If that was assessed, there was no necessity of issuing a notice to re-open it and particularly when there is no failure on the part of the assessee to disclose fully and precisely all material facts necessary for making an assessment. The revenue not only failed to justify the exercise undertaken on this count and also on merits. It is in these circumstances that, we find that the present appeal is entirely frivolous and deserves to be dismissed. It does not raise any substantial question of law. It is accordingly dismissed. (G.S. KULKARNI, J.) (S.C.DHARMADHIKARI, J.)