The Commissioner of Income Tax IV vs. M/s Lee Pharma Pvt Ltd.,

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE K.C. BHANU

INCOME TAX APPELLATE TRIBUNAL APPEAL NO.384 OF 2013

DATED:30.8.2013

Between:

The Commissioner of Income Tax-IV Hyderabad … Petitioner

And

M/s. Lee Pharma Pvt. Ltd., Sy.No.257, 285/1, D.No.11-6/56 C-Block, Opp. IDPL Factory Moosapet Balanagar Hyderabad … Respondent

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE K.C. BHANU

I.T.T.A. NO.384 OF 2013

JUDGMENT: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta)

We have heard the learned counsel appearing for the appellant and gone through the judgment and order of the learned Tribunal. This appeal is sought to be admitted on the following suggested questions of law: 1. “Whether, on the facts and in the circumstances of the case and in law, the Tribunal is correct in holding that the order of reassessment as null and void? 2. Whether on the facts and in the circumstances of the case and in law, the Tribunal is correct in holding that reopening of assessment is bad in law without going into the merits of the case, that the assessment was reopened on account of excessive deduction under Section 80HHC of the Income Tax Act, being allowed on account of adoption of incorrect export turnover by the assessee?”

The learned Tribunal has come to a fact finding that the Assessing Officer while passing subsequent order of assessment has substituted his own views. In other words, there is change of opinion. The exact findings of the learned Tribunal are quoted hereunder: “Thus in our opinion the reopening is merely change of opinion of the Assessing Officer and he should have tangible material for forming an opinion that there has been an escapement of income.”

In view of the aforesaid fact finding, it is difficult for us to admit this appeal, as there is no element of law involved.

Further, the learned Tribunal had taken a correct view that an

audit opinion in regard to the application or interpretation of law cannot be treated as information for reopening the assessment under Section 147(b) of the Income Tax Act. This proposition of law has been decided by the Supreme Court in the case of Indian & Eastern Newspaper Society v. Commissioner of Income Tax[1] and also in the case of Commissioner of Income Tax v. Lkucas TVS Ltd.[2] Therefore, nothing remains to be decided by us in this appeal. The appeal is accordingly dismissed. There will be no order as to costs.

________________________ K.J. SENGUPTA, CJ

______________________ K.C. BHANU, J 30.8.2013

bnr

[1] 119 ITR 996 (SC) [2] 249 ITR 306 (SC)