THE INCOME TAX OFFICER, WARD 1(2) vs. DIVYA VASUNDHARA FINANCIERS PRIVATE LIMITED

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TAXAP/124/2011HC GujaratGJHC24024995201112 June 2012Author: HONOURABLE MR. JUSTICE VIJAY MANOHAR SAHAI,HONOURABLE MR. JUSTICE N.V.ANJARIA3 pages

AI SummaryDismissed

What did the High Court hold?

The High Court held that no substantial question of law arises from the ITAT's order. The Appellate Commissioner's order, which was upheld by the ITAT, was an order of remand. The direction was for the Assessing Officer to rework the figures of addition to the total income, if any warranted, based on the figures of allotment during the year as mentioned in the ITAT's order. The Court found that such a direction merely requires the Assessing Officer to adjudicate the issue again based on the facts and material before him. An order of remand, in the facts of the present case, does not ordinarily constitute a substantial question of law. Therefore, the Tax Appeal was dismissed.

What were the facts?

The Revenue (Income Tax Officer, Ward 1(2)) has appealed against an order of the Income Tax Appellate Tribunal (ITAT), Ahmedabad, dated 08.06.2007, which upheld an order of the Appellate Commissioner. The assessee, Divya Vasundhara Financiers Private Limited, engaged in finance and construction, filed its return for AY 1997-98. The Assessing Officer (AO) determined income at Rs.24,92,090/-. After a remand by the Commissioner, the AO's revised assessment was Rs.25,04,500/-. The ITAT, in an earlier round (order dated 20.08.2001), had remanded the issue of income from two housing schemes (Harinagar No.III and Divya Jyot Flats) to the AO, which the Revenue did not challenge. The AO then determined income for Harinagar No.2 at Rs.2,92,239/- and Divya Jyot Flats at Rs.10,77,298/-. The Commissioner, finding the AO had not followed ITAT's directions, remanded the issue back to the AO.

What were the issues?

1. Whether on the facts and in the circumstances of the case and in law, the Income Tax Appellate Tribunal is right in remanding the matter back to the Assessing Officer to determine profit of the assessee from the two housing schemes, namely, Harinagar No.III Housing Scheme and the housing scheme of Divya Jyot Flats? (Question of law) Assessee's contentions: Not recorded in the judgment. Revenue's contentions: The Revenue argued that the ITAT was right in remanding the matter back to the Assessing Officer to determine the profit from the two housing schemes. The judgment states the Revenue preferred the appeal under section 260A of the Income Tax Act, 1961, and formulated the substantial question of law as above. The Revenue's advocate made submissions, but the specific arguments are not detailed beyond the framing of the question.

Which sections of the Income-tax Act were involved?

Section 260A

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

TAXAP/124/2011 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 124 of 2011 For Approval and Signature: HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= THE INCOME TAX OFFICER, WARD 1(2) - Appellant(s) Versus DIVYA VASUNDHARA FINANCIERS PRIVATE LIMITED - Opponent(s) ========================================================= Appearance : MRS MAUNA M BHATT for Appellant(s) : 1, None for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 12/06/2012

ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) The Revenue has preferred the present appeal under section 260A of the Income Tax Act, 1961 against the order dated 08.06.2007 of the Income

TAXAP/124/2011 2/3 JUDGMENT Tax Appellate Tribunal, Ahmedabad delivered in ITA No. 2786/Ahd/2003. The proposed substantial question of law formulated by the Revenue in the memorandum of appeal is as under: “Whether on the facts and in the circumstances of the case and in law, the Income Tax Appellate Tribunal is right in remanding the matter back to the Assessing Officer to determine profit of the assessee from the two housing schemes, namely, Harinagar No.III Housing Scheme and the housing scheme of Divya Jyot Flats?

The relevant facts of the case are that the respondent assessee who was engaged in the business of finance and also construction and sale of residential houses, filed its return of income for Rs.3,94,758/- in respect of the Assessment Year 1997-98, however during the assessment process, the Assessing Officer determined its income at Rs.24,92,090/-. In the assessee's appeal against that order, the Appellate Commissioner remitted back certain issues to the Assessing Officer, upon which the officer passed fresh assessment order determining total income of the assessee to be Rs.25,04,500/-. In the second round of challenge by the assessee, the matter reached upto the Income Tax Appellate Tribunal, which by order dated 20.08.2001 remanded the issue regarding the income earned in the construction of the two Housing Schemes to the Assessing Officer. This order of the Tribunal was not challenged by the Revenue.

1 Thereupon, the Assessing Officer by order dated 30.10.2002 determined income of Harinagar No.2 Housing Scheme at Rs.2,92,239/- and for another Housing Scheme named Divya Jyot Flats, Rs.10,77,298/- was determined. Against that, the appellate Commissioner by order dated 10.03.2003 allowed assessee’s appeal by remitting the said issue back to the Assessing Officer on the ground that in dealing with the matter, the Assessing Officer had not followed the directions given by the Tribunal. The TAXAP/124/2011 3/3 JUDGMENT Income Tax Appellate Tribunal dismissed the appeal of the Revenue.

We heard learned advocate Mrs. Mauna M. Bhatt appearing for the appellant, and considered her submissions.

The appellate Commissioner for the reasons recorded in his order, has only remitted the matter back to the Assessing Officer directing him to “rework the figure of addition to the total income declared, if any addition is warranted under the facts on the basis of figure of allotment during the year mentioned in the ITAT's order”. It is evident that the order is of remand and it is that order which is upheld by the Appellate Tribunal.

On the face of it, the direction only requires the first adjudicating authority namely the Assessing Officer to rework the figures of addition. No substantial question of law is shown to be arising. Ordinarily, and certainly in the facts of the present case, an order of remand does not constitute any substantial question of law. The Assessing Officer would be adjudicating the issue again on the basis of facts and material before him.

In view of above facts and circumstances, no question of law, much less any substantial question of law, can be said to be arising. This Tax Appeal is accordingly dismissed. (V.M. SAHAI, J.) (N.V. ANJARIA, J.) [SN DEVU PPS]

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