GROVER INTERNATIONAL vs. C I T

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ITA/647/2008HC Punjab & HaryanaPHHC01080658200809 December 2008Author: MR. JUSTICE ADARSH KUMAR GOEL,MR. JUSTICE L.N. MITTAL3 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. Regarding the first issue, the court found that the proposition advanced by the assessee was not supported by the judgment relied upon. The court stated that it is not a case where the issue is debatable; rather, the issue has been clearly settled by the Supreme Court. Therefore, there can be no objection to the reopening of assessment on the basis of a Supreme Court judgment. The judgment does not explicitly address the second issue concerning Audi Alteram Partem, but by dismissing the appeal, it implicitly upholds the ITAT's decision which did not find merit in the assessee's argument on this point. The operative direction was to dismiss the appeal.

What were the facts?

The assessee, Grover International, appealed to the High Court against an order of the Income Tax Appellate Tribunal (ITAT) for assessment year 2003-04. The ITAT had upheld the reopening of assessment under Section 147 of the Income Tax Act, 1961. The assessee had claimed deduction under Section 80IB on income from sale of DEPB, which was initially allowed. However, the assessment was reopened based on a Supreme Court judgment in CIT vs. Sterling Foods Limited, which held that income from DEPB is not derived from specified business. The ITAT had noted that the assessment for the preceding year, 2002-03, was also reopened under identical circumstances and upheld. The assessee's cross-objection was dismissed by the ITAT.

What were the issues?

1. Whether, under Section 147 of the Income Tax Act, 1961, the ratio of a Supreme Court judgment is postulated in the words "Reasons to believe" as discernible from "belief for reasons"? (Question of law) 2. Whether, per the doctrine of Audi Alteram Partem, a judgment can be pronounced before an opportunity has been granted? (Question of law) Assessee's contentions: The assessee argued that a judicial opinion of a higher authority cannot be a ground for re-assessment, relying on CIT vs. Assembly Rooms (Madras High Court). Revenue's contentions: The judgment records no specific contentions for the revenue on these issues, but the ITAT's reasoning implies that the revenue relied on the Supreme Court judgment in CIT vs. Sterling Foods Limited to justify the reopening.

Which sections of the Income-tax Act were involved?

Section 147,Section 148,Section 80IB,Section 260-A

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
I. T. A. No. 647 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : I. T. A. No. 647 of 2008 Date of Decision : December 09, 2008. Grover International .... Appellant Vs. Commissioner of Income Tax, Karnal, Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Pankaj Jain, Advocate for the appellant. * * * ADARSH KUMAR GOEL, J. (Oral) : 1. The assessee has preferred this appeal under Section 260-A of the Income Tax Act, 1961 for the assessment year 2003-04 against the order of the Income Tax Appellate Tribunal, Delhi Bench 'F', New Delhi, dated 31.01.2008, proposing to raise following substantial questions of law :- “A. Whether on the true and correct interpretation of the provisions of section

147 the ratio of a Supreme Court Judgment is postulated in the words “Reasons to believe” as discernable from “belief for reasons” ? B. Whether per the doctrine of Audi-Alterm- Partem there can be pronouncement of a judgment before opportunity having been granted ?”

2.

The assessee derived income from sale of DEPB and sought deduction under Section 80IB, which applies to income from specified business. The claim of the assessee was allowed, as per the said statutory provision, but subsequently, notice under Section 148 was issued for re- assessment relying upon judgment of Hon'ble Supreme Court in CIT vs. Sterling Foods Limited, (1999) 237 ITR 579 (SC), wherein it was held that income from DEPB could not be treated to be derived from specified business. The said view has been affirmed by Appellate Authority and the Tribunal. The Tribunal held :- “6.

We have heard both the parties in the matter. We find that return of income in this case had only been processed u/s 143(1) and there was no assessment framed u/s 143. The assessment was reopened on the ground that deduction u/s 80-IB in respect of the duty draw back claimed by the assessee was not allowable in view of the judgment of Hon'ble Supreme Court in case of Sterling Foods Ltd. (supra). In our view, there was relevant material for formulation of belief regarding escapement of income and the reopening on the facts was justified. We also find that assessment for the immediate preceding year i.e., assessment year 2002-03 had also been reopened under the identical situation in the assessee's own case and the Tribunal vide order dated 4.1.2008 in ITA 1061/D/2006 had upheld the reopening.

Respectfully following the said decision and the reason given earlier, we dismiss the cross objection filed by the assessee.”

3.

We have heard learned counsel for the assessee.

4.

Learned counsel for the assessee submitted that judicial opinion of a higher authority cannot be a ground for re-assessment. Reliance in this can be no objection to re-opening of assessment on the basis of judgment of Hon'ble Supreme Court.

6.

No substantial question of law arises.

7.

Dismissed. (ADARSH KUMAR GOEL) JUDGE December 09, 2008

( L. N. MITTAL ) monika JUDGE

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