TMI Blog2011 (9) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to three different periods, and arise out of a common order dated 16.5.2008, passed by the Income Tax Appellate Tribunal, Patna Bench, whereby the appeals preferred by the assessee as well as the department have been dismissed by a common order, and that of the learned Commissioner of Income Tax (Appeals), has been upheld. M.A. No. 606 of 2008: 2. We shall first take up M.A. No. 606 of 2008. A brief statement of facts essential for the disposal of the appeals may be indicated. This appeal is with respect to the assessment year 2001-02. The two other appeals have been heard analogous with the present one, and are being disposed of by the present judgment. 2.1 The appellant is a private limited company and is registered under the provisions of the Companies Act 1956. There was a search and seizure in the premises of one Brajesh Kumar, the Managing Director of the Company, on 23.11.2000. Documents related to transactions of the assessee company were found, seized, and marked SS-1 to SS-9. Proceedings for block assessment in terms of section 158BC, read with section 158BD of the Act, were initiated. During the course of block assessment proceeding, the assessee produced b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 37/[2008] 170 Taxman 131 (Mad.). 3.1 He submits in the same vein that change of opinion on the self-same facts is impermissible, and is possible only if new facts or new situation like misrepresentation of facts, fraud etc. come to light. He relies on the following reported judgments: (i) In CIT v. Eicher Ltd., [2007] 294 ITR 310/163 Taxman 259 (Del.) (ii) In CIT v. Kelvinator of India Ltd., [2010] 320 ITR 561/187 Taxman 312 (SC). 3.2 He next submits that if a particular procedure has been prescribed by the statute, then no other procedure can be resorted to. He relies on the judgment of the Supreme Court in the case of State of Gujarat v. Shantilal Mangaldas AIR 1969 SC 634. He also submits that once block period assessment takes place, then all other assessment proceedings merge into the same. He relies on the judgment in the case of Raja Ram Kulwant Rai v. Asstt. CIT [1997] 227 ITR 187/[1998] 98 Taxman 279 (Punj. Har.). He next submits that, if the learned assessing officer was not satisfied by the books of accounts produced by the assessee, he ought to have followed the procedure prescribed under section 145(3), read with section 144 of the Act, after recordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has pressed the following substantial question of law for our consideration: (i) Whether after the initiation and dropping after hearing of Block Assessment Proceedings for assessing undisclosed income the Assessing Officer is authorised and empowered to simultaneously re-open the assessment under section 147/148 of the Income Tax Act, 1961 alleging escapement of income on basis of the very same Audited Accounts considered by him during Block Assessment and which had already been filed with the Register of Companies, Bihar and when no return had been filed instead of making the Block Assessment of income? (ii) Whether the A.O. having treated the non-filing of the Return as the concealment of the income was justified in not making an assessment as provide by Chapter XIV B of the Act and adding those figures in Block Assessment? (iii) Whether the simultaneous action for re-assessment was validly initiated against the appellant who had not submitted any regular return under section 139 of the Income Tax Act, 1961 when the Block Assessment consisting of all those years was pending as the law provides that any re-assessment proceedings be started only after comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act 1961, was issued on 31.08.2004", after recording reason to reopen the case as follows: "Sri Brajesh Kumar and Sri Manoj Kumar are the two directors in the assessee company. The assessee has not filed the return of income for the A.Y. 2001-02." 7. On a perusal of the two orders of 31.08.2004, we are of the view that the course adopted by the learned assessing officer is permissible in the scheme of the Act. It is evident on a perusal of the order dated 31.8.2004 (Annexure-1), that the assessment proceeding had not taken place on merits and, in view of the constraints presented by the assessee, the proceeding was terminated. Such a situation was brought about by the conduct and complete lack of cooperation attributable to the assessee. The learned Assistant Standing Counsel has rightly relied on the Division Bench judgment of the Allahabad High Court in Chandra Prakash Agrawal (supra). Learned counsel for the appellant is not right in his submission that there was change of opinion on the self-same facts. Had the block-period assessment been concluded on merits, and thereafter best-judgment assessment been resorted to, the same may have given rise to a situation complained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal [before the date of establishment of the National Tax. Tribunal], if the High Court is satisfied that the case involves a substantial question of law. (2) [The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be-] (a) filed within one hundred and twenty days from the date on which the order appealed against is [received by the assessee or the Chief Commissioner or Commissioner]; ( b ) ** ** ** (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question; Provided that nothing in this sub-section shall be deemed to take away or abr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermissive of substituting one speculation on facts for another. Mr. Justice Felix Frankfurter, celebrated Judge of the Supreme Court of U.S.A., in James C. Rogers v. Missouri Pacific Rail Road Co., 352 U.S. 500= 1 L ed. 2nd 493, has made observations to that effect. The position may be more stringent for the appellant in the present case in contra-distinction to the second appellate jurisdiction under section 100 of the Code of Civil Procedure, inasmuch as the second appeal before the High Court is the third forum for the appellant, whereas the present forum is the fourth one. This, to our mind, it is a vital aspect of the matter and the appellant will have to make out a strong case of substantial question(s) of law to maintain this appeal. 13. Speaking on the scope of second appeal within the meaning of section 100 CPC, the Supreme Court has observed in the case of Santosh Hazari v. Purushottam Tiwari [2001] 3 SCC 179, that a point of law which admits of no two opinions may be a proposition of law, but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled under law of the land or a binding precedent, and must have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of mind was brought to bear on the appeals before him by the learned Commissioner of Income Tax (Appeals), and he gave substantial relief to the assessee by deleting certain additions made by the learned assessing officer. These appeals are indeed not maintainable in view of complete absence of any substantial question of law arising for consideration. M.A. No.606 of 2008 is dismissed. M.A. No.605 of 2008: 17. This appeal is at the instance of the same assessee, and is with respect to the assessment year 2000-01. The learned assessing officer passed order of assessment on 6.3.2006 (Annexure-4). The order of the learned Commissioner of Appeals, and that of the learned Tribunal, are common as in the aforesaid M.A. No.606 of 2008. It is entirely covered by our aforesaid judgment. Consequently M.A. No.605 of 2008 is dismissed. M.A. No.607 of 2008: 18. This appeal is also at the instance of the same assessee and deals with the assessment year 1999-2000. The learned assessing officer passed order of assessment on 6.3.2004 (Annexure-4). The order of the learned Commissioner of Appeals, and that of the learned Tribunal, are common as in the aforesaid M.A. No.606 of 2008. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
