THE COMMISSIONER OF INCOME TAX vs. M/S. APOLLO TYRES LIMITED

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ITA/167/2013HC KeralaKLHC01026052201329 July 2021Bench: HONOURABLE MR.JUSTICE S.V.BHATTI,HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS5 pages
AI SummaryDismissed

What did the High Court hold?

The High Court of Kerala, by following its previous judgment dated February 27, 2019, in ITA Nos. 41 and 69 of 2011, which dealt with similar substantial questions of law for assessment years 2001-02 and 2002-03, answered the questions in favour of the assessee and against the Revenue. The Court held that the reopening proceedings were illegal, aligning with the Tribunal's decision. The reasoning is based on the precedent set by the Court in the earlier appeals, where similar issues were decided in favour of the assessee. The ratio decidendi is that if reopening is based on a mere change of opinion without the assessee failing to disclose material facts, it is invalid. The appeal filed by the Revenue was dismissed. No issue was expressly left undecided.

What were the facts?

The Commissioner of Income Tax (Revenue) filed an appeal before the High Court of Kerala against an order of the Income Tax Appellate Tribunal (Tribunal), Cochin Bench. The Tribunal, in its order dated December 21, 2012, annulled the reopening proceedings initiated under Section 147 read with Section 148 of the Income Tax Act, 1961, and set aside the order of the Commissioner of Income Tax (Appeals). The assessment year in question is 2004-05. The Revenue's appeal is based on substantial questions of law concerning the validity of the reopening proceedings.

What were the issues?

1. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in annulling the reopening proceedings and in setting aside the order of CIT (A)? (Question of law and fact) 2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in holding that the assessment was reopened mainly on the basis of change of opinion, and is not the finding wrong, perverse and without appreciating the failure of the assessee to disclose fully and truly all material facts without an occasion to form an opinion and thereby not forming an opinion while completing the original assessment? (Question of law and fact, concerning Sections 147 and 148) Revenue's Contentions: The Revenue argued that the Tribunal's finding that the assessment was reopened mainly on the basis of a change of opinion was wrong, perverse, and failed to appreciate the assessee's failure to disclose all material facts truly and fully, which prevented the Assessing Officer from forming an opinion during the original assessment. Assessee's Contentions: The assessee contended that the reopening proceedings were illegal and that the Tribunal was correct in annulling them. The judgment does not explicitly record the assessee's arguments beyond what is implied by the Tribunal's decision.

Which sections of the Income-tax Act were involved?

Section 147,Section 148

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 29TH DAY OF JULY 2021 / 7TH SRAVANA, 1943 ITA NO. 167 OF 2013 AGAINST THE ORDER IN ITA 300/2009 OF I.T.A.TRIBUNAL,COCHIN BENCH, ERNAKULAM APPELLANT/S: THE COMMISSIONER OF INCOME TAX-1 COCHIN. BY ADVS. SRI.P.K. RAVEENDRANATHA MENON SRI.JOSE JOSEPH, SC, FOR INCOME TAX CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT RESPONDENT/S: M/S. APOLLO TYRES LIMITED CHERUPUSHPAM BUILDING, SHANMUGHAM ROAD, KOCHI-682 031. BY ADVS. SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS SRI.ABRAHAM VARGHESE THARAKAN SRI.BINU MATHEW SRI.JOSEPH MARKOSE SR. SRI.TOM THOMAS KAKKUZHIYIL THIS INCOME TAX APPEAL HAVING COME UP FOR HEARING ON 29.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

I.T.A. No.167/2013 -2- J U D G M E N T S.V. Bhatti, J. Heard learned Standing Counsel Mr. Jose Joseph and learned Senior Counsel Mr. Joseph Markos for parties. 2. The Commissioner of Income Tax/Revenue is the appellant. M/s. Apollo Tyres Ltd., Kochi/Assessee is the respondent. The instant appeal is filed against the order of Income Tax Appellate Tribunal (for short ‘Tribunal) Cochin Bench in ITA No.300/Coch/2009 dated 21.12.2012. The Tribunal, through the order under challenge in the appeal, held that reopening proceedings under Section 147 read with Section 148 of the Income Tax Act, 1961 (for short ‘the Act’) are illegal, and consequently annuled the reopening proceedings. In the subject appeal, the assessment relates to Assessment Year 2004-

I.T.A. No.167/2013 -3- 05. The following questions are stated for consideration: i. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in annulling the reopening proceedings and in setting aside the order of CIT (A)? ii. Whether, on the facts and in the circumstances of the case, the Tribunal is right is law and fact in holding that the assessment was reopened mainly on the basis of change of opinion and is not the finding wrong, perverse and without appreciating the failure of the assessee to disclose fully and truly all material facts without an occasion to form an opinion and thereby not forming an opinion while completing the original assessment? 3. The Revenue filed ITA No.41/2011 raising the same substantial questions of law for the assessment Year 2001-02 and ITA No.69/2011 for the Assessment Year 2002-03. This Court vide judgment dated 27.02.2019 dismissed the appeals filed by the Revenue answering the questions in favour of the

I.T.A. No.167/2013 -4- assessee. In the present case as well, the Revenue refers to ITA No.41/2011 and ITA No.69/2011 in the synopsis. By following the judgment of this Court dated 27.02.2019 in ITA Nos. 41 and 69 of 2011, the questions are answered in favour of the Assessee and against the Revenue. ITA No.167/2013 is dismissed accordingly. No order as to costs. Sd/- S.V.BHATTI JUDGE Sd/- BECHU KURIAN THOMAS JUDGE jjj

I.T.A. No.167/2013 -5- APPENDIX OF ITA 167/2013 PETITIONER ANNEXURE ANNEXURE A COPY OF THE ASSESSMENT ORDER U/S. 143(3) RWS 147 DATED 12/12/2008 PASSED BY THE ASSESSING OFFICER FOR AY 2004-05. ANNEXURE B COPY OF THE CIT(A)'S ORDER NO.24, 25, 26 & 27/R- 1/E/CIT-II/08-09 DATED 30/03/2009. ANNEXURE C COPY OF THE ITAT'S ORDER ITA NO.300/COCH/2009 DATED 21/12/2012 FOR ASSESSMENT YEAR 2004-05.

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