TMI Blog2018 (8) TMI 1556X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantial questions of law. We are constrained to hold that there is no question of law, let alone any substantial question of law, involved in this appeal. - Decided against revenue - T.C. (A) No. 435 of 2018 - - - Dated:- 17-7-2018 - MS. INDIRA BANERJEE, CHIEF JUSTICE AND MS.JUSTICE P.T.ASHA For Appellant : Mr.T.R.Senthil Kumar Senior Standing Counsel JUDGMENT ( Delivered by Ms. Indira Banerjee, Chief Justice ) This appeal is against an order dated 7.12.2017 passed by the Income Tax Appellate Tribunal, 'B' Bench, Chennai, allowing the appeal, being I.T.A.No.1036/Mds/2016, filed by the respondent assessee against an order dated 22.1.2016 passed by the Commissioner of Income Tax (Appeals)-15, partly allowing I.T.A.No.11/CIT(A)-15/14-15 against an impugned order of reassessment dated 12.3.2014. 2. The respondent assessee filed return of income on 30.9.2008 for the assessment year 2008-2009 showing Nil income. The case was selected for scrutiny and assessment was completed under Section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the IT Act ), accepting the returned income. 3. It was later noticed that an advance of ₹ 1,05,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct from its joint venture parties. It could not be said that the Assessing Officer was not aware or not informed of this. It could not also be said that the learned Assessing officer had not applied his mind on the treatment of the said amount by the assessee. 8. The learned Tribunal, relying on the judgments of the Supreme Court in CIT v. Kelvinator India Ltd., reported in 320 ITR 561 and the Delhi High Court in CIT v. Kelvinator India Ltd., reported in 256 ITR 1, held that when there was no fresh material available with the learned Assessing Officer for harbouring a doubt that income had escaped assessment, reopening of assessment was purely based on change of opinion. 9. Section 147 of the IT Act along with Explanation 1 thereto, is set out herein below for convenience: Section 147. If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the learned Tribunal, which calls for interference of this Court. 12. Section 260A of the 1961 Act provides: Section 260A. Appeal to High Court. (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 Principal Chief Commissioner or Chief Commissioner or the Principal Commissioner or 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 Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner. (b) [***]; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557) When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law. This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR pp. 557-58) The proper test for determining whether a question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law . (iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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