Loading judgment…
No AI summary yet for this case.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23RD DAY OF JULY 2013 BEFORE THE HON’BLE MR. JUSTICE RAM MOHAN REDDY WRIT PETITION No.13174/2013 (T-IT)
BETWEEN:
Jeans Knit Private Limited, (A private company limited by shares Incorporated under the Companies Act, 1956) Having its offices at: No.21-E-1, 2nd phase, Industrial Area, Peenya, Bangalore. Petitioner
(By Sri Nageshwar Rao and Arun Shrikumar, Advocates)
AND:
The Deputy Commissioner of Income Tax,
Circle 11(5), R.P. Building,
Nrupathunga Road,
Bangalore-560 001.
The Commissioner of Income Tax,
C.R.Building, Queens Road,
Bangalore-560 001. Respondents (By Sri E.S.Indrakumar, Senior Counsel for Sri E.I. Sanmathi, Advs.)
This writ petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the notice dated 06.03.2012 issued by respondent No.1 to the petitioner under Section 148 of the Income Tax Act,
1961, Annexure-A as being unlawful, illegal and without jurisdiction, etc.,
This petition coming on for preliminary hearing this day, the Court made the following:
ORDER
Petitioner, a Company incorporated under the Companies Act, 1956 has called in question the legality and validity of the notice dated 06.03.2012, Annexure-A of the first respondent invoking Section 148 of the Income Tax Act, 1961 (‘the Act’ for short); the notices of even date 03.01.2013, Annexures-B and C invoking Sections 143(2) and 142(1) of the Act; to quash the order dated 06.03.2013, Annexure-E disposing of the objections of the petitioners filed on 11.02.2013 and notices of even date 06.03.2013 under Sections 143(2) and 142(1) of the Act, Annexures-E and F and for a writ of mandamus to stay all further proceedings pursuant to the notices, Annexures-E and F.
Facts briefly stated are: petitioner is a 100% export oriented unit engaged in manufacture and export of high-fashion designer jeans having its registered
office in the State of Karnataka at Bangalore and assessed to tax.
For the assessment year 2006-07, petitioner filed a return, and a revised return of income on 22.10.2007 declaring NIL income while the computation of income showed net profit from business as Rs.45,37,37,724/- from out of which Rs.41,38,13,599/- was claimed as deduction for the first year under Section 10(B) of the Act. That return of income was accepted under Section 143(1) of the Act on 28.03.2009 computing gross total income and tax liability of the petitioner for the said assessment year. No notice of scrutiny was issued and therefore, return had attained finality.
The business premises of the petitioner when surveyed on 05.11.2009 invoking Section 133A of the Act, statements were obtained from some employees of the petitioner-company, pursuant to which, the assessment of petitioner’s returns for the assessment year 2007-08 was completed under Section 143(3) of the
Act on 30.12.2010 declining deductions under Section 10B of the Act, on the premise of the statement of the petitioner’s employee who though retracted from his statement by filing an affidavit on 19.04.2010. An appeal preferred by the petitioner over the said assessment order was allowed and the deduction under Section 10B permitted, against which the revenue is in appeal before the Income Tax Appellate Tribunal.
The first respondent issued a notice under Section 148 of the Act on 06.03.2012, Annexure-A, calling upon the petitioner to file its return of income so as to assess income alleged to have escaped tax during the previous year i.e., relevant to assessment year 2006-07, to which the petitioner responded by letter dated 22.03.2012 stating that the revised return of income dated 22.10.2007 should be treated as return filed in response to the said notice for the relevant year, in addition to making a request for supply of copy of reasons for initiating reassessment proceedings for the assessment year 2006-07. The first respondent is said to have
furnished the reasons in its letter dated 03.01.2013, Annexure-G alleging that the petitioner failed to fulfill the conditions required to claim deduction under Section 10B and hence ineligible for the deductions. According to the first respondent, the business premises used by the petitioner and belonging to Fibres and Fabrics International Private Limited (‘FFIPL’ for short) was one and the same; entire machinery had been shifted from FFIPL to the petitioner; FFIPL and the petitioner are having the same business of manufacture and export of jeans and almost all employees including technical and managerial are shifted from FFIPL to petitioner-company. The first respondent issued notices under Sections 143(2) and 142(1) of the Act, Annexures B and C, on 03.01.2013, responded to on 12.02.2013 by filing written objections, inter-alia, contending that the reasons were arbitrary, irrational and therefore, the first respondent had no jurisdiction to initiate proceedings. In addition, it was submitted that for the assessment year 2007-08, the CIT(A) accepted the version of the
petitioner and extended the benefit of deduction under Section 10B by rejecting the material gathered by the Assessing Officer during the course of survey. It is said that CIT(A) disagreed with the conclusion of the Assessing Officer that the petitioner-company was formed by splitting or reconstruction of business of FFIPL, since there was neither split nor reconstruction by way of transfer of plant, machinery, premises and man power during the period relevant to assessment year 2006-07, the first year in which petitioner claimed deduction under Section 10B.
Therefore, the petitioner’s claim that what happened subsequent to the assessment year 2006-07, more particularly, during the assessment year 2007-08 could not have formed a valid and legal basis or material for denying the deduction under Section 10B for the assessment year 2006-07.
The further assertion of the revenue that the decline in business turn over of FFIPL and increase in the business turn over of petitioner-company was an
attempt to enjoy the benefits of Section 10B of the Act in order to avoid tax liability of sister concern, not based on facts and evidence, since a new unit can always be started for availing tax benefit and there being no bar under the statute, it is submitted the starting of the new undertaking by the petitioner and making profits could not support the allegation of the Assessing Officer as was confirmed by the CIT(A) in its order.
It is the allegation of the petitioner that the first respondent in a cavalier manner without applying his mind to the material on record and not noticing the law laid down by the Apex Court in the decision referred to in the reply statement, rejected the objections of the petitioner by order dated 06.03.2013, Annexure-D.
The first respondent having issued notice under Section 143(2) and 142(1) of the Act on 12.03.2013, Annexures-E and F, calling upon the petitioner to furnish various information and details, petitioner by representation dated 12.03.2013, Annexure-N sought time to furnish
the information which was rejected by communication dated 13.03.2013, Annexure-P. Hence this petition for the reliefs noticed supra.
Petition is opposed by filing statement of objections, inter-alia, contending that invoking of jurisdiction under Section 147 for reopening assessment for the assessment year 2006-07 was based on reasons, consequent upon survey under Section 133A conducted at the business premises of the petitioner, on 05.11.2009. In addition, it is stated that there is enough and more material in order to establish the reasons that the petitioner company is an outcome of reconstruction of FFIPL and therefore, the grounds set out in the memorandum of writ petition are not worthy of consideration.
Learned counsel for the petitioner submits that at the threshold, the order, Annexure-D of the first respondent has occasioned denial of justice, and that the reasons to reopen the assessment for the
assessment year 2006-07 as furnished in the communication, Annexure-G being evasive and speculative, not being rational and relevant nexus to the formation of such a belief, calls for interference and places reliance upon the decision of the Division Bench of this Court in the case of The Assistant Commissioner of Income Tax, Investigation Circle, Mangalore vs. Sri. A. Nagappa1. Learned counsel further places reliance upon the decision of the Apex Court in Ganga Saran and Sons Pvt. Ltd., vs. Income Tax Officers and others2 to submit that the first respondent had no reason to believe that the income of the petitioner had escaped assessment by wrongly claiming deduction under Section 10B; that the belief that is to be entertained by the first respondent ought not to be arbitrary or irrational, but after an examination as to whether the reasons are relevant and have a bearing on the matters in regard to which first respondent is required to entertain the belief, before
1 W.A. No. 928/1991 D.D. 19.03.1992 2 130 ITR Page 1
issuing notice under Section 147; if there was a rational and intelligible nexus between the reasons and the belief, so that, on such reasons, no one properly instructed on facts and laws could reasonably entertain the belief.
It is next submitted that words “reason to believe” when considered by Apex Court in Sheo Nath Singh vs. Appellate Asst. Commissioner of Income Tax (Central), Calcutta and others3, it was held that belief must be that of an honest and reasonable person based upon reasonable grounds and that the Income Tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour and therefore the reasons assigned by the first respondent in Annexure-G are susceptible to suspicion, gossip and rumour, hence not sustainable.
Learned counsel places reliance upon the decision of the Apex Court in the case of Bajaj Tempo Ltd.,
3 82 ITR 147
Bombay vs. Commissioner of Income Tax, Bombay City-III, Bombay4 in support of his submission that, “the transfer”, to take out the new undertaking out of purview of sub-section (1) of Section 10B of the Act must be such that, but for transfer, the new undertaking could not have come into being. It is the further submission of the learned counsel that, in order to deny the benefit under Section 10B, the new undertaking must be formed by reconstruction of old business when the assets of the old business are transferred substantially to the new undertaking, by placing reliance on the decision of the Apex Court in the case of Textile Machinery Corporation Limited, Calcutta vs. The Commissioner of Income Tax, West Bengal, Calcutta5.
It is lastly submitted that mere fact that petitioner was getting some job works done from M/s FFIPL by itself and nothing more cannot deprive the petitioner of
4 1992 SCC (3) 79 5 1977 SCC (2) 368
the benefit of deduction under Section 10B of the Act and places reliance upon the decision of the High Court of Delhi in ITA No.1324/2010 dated 03rd June 2011 in the case of CIT vs. Continental Engines Ltd6.
Per Contra, learned Senior Counsel for the respondent-revenue seeks to sustain the order impugned as being well merited, fully justified not calling for interference, and that giving of reasons for initiation of proceedings under Section 147 is an out come of law declared by the Apex Court, extending an opportunity to submit a reply, hence the rejection of the reasons would not preclude the revenue from an adjudication and if the petitioner is aggrieved by any order passed thereon, may question the same in an appropriate legal proceeding. Learned Senior Counsel would not seriously oppose the observations of Apex Court in the decisions relied upon by the learned counsel for the petitioner. According to the learned Senior counsel there are a catena of decisions in
6 338 ITR 290
support of the contention that proceedings under Section 147 of the Act when initiated on the basis of reasons supplied to the assessee, must be taken to its logical end, after adjudication, as the assessee would be extended reasonable opportunities to putforth his case against the reasons. Learned senior counsel, submits that the petition filed at a threshold stage of rejection of the objections to the notice furnishing reasons, pursuant to the notice under Section 147 deserves to be rejected. It is lastly submitted that the survey of the petitioner’s premises in exercise of jurisdiction under Section 133A of the Act revealed the true identity of the petitioner-company i.e., it was a company reconstructed from out of M/s FFIPL and therefore, disentitled to the benefit of deduction under Section 10B of the Act.
Having heard the learned counsel for the parties, perused the pleadings and examined the order, Annexure-B, ex-facie what is patent is that the order suffers from reasons and findings, except for drawing conclusion.
It is elsewhere said that recording of reasons is a part of fair procedure since reasons are the harbinger between the mind of maker of the decision in the controversy and the decision or conclusion arrived at to substitute subjectivity with objectivity. It is true that the order of affirmation of the reasons need not be by extracting the reasons elaborately but even then the arguments or submissions made, points urged have to be dealt with if not elaborately, atleast briefly. Regard being had to the only reason assigned in the order Annexure-D being that of extracting Section 147 of the Act and saying that reasons attributed to the invoking of Section 147 are just and reasonable, there is nothing to show application of mind over the elaborate reply made by the petitioner, more appropriately on relevant material as existed during the assessment year 2006-07 which the office while conducting a survey under Section 133A had no knowledge of. Regard being had to the principles of law laid down by the Apex Court in the decisions noticed supra, it is needless to state that the 1st respondent should have considered the plea
of the petitioner, by applying the principles of law laid down in order to come to a conclusion either accepting the objections or rejecting the same. A mere statement rejecting the objections advanced by the petitioner does not confirm to rule of law and on that score alone this petition deserves to be allowed in part.
In the circumstances, there is a need for the 1st respondent to consider all the pleas advanced by the petitioner in the reply Annexure-M to the reasons Annexure-G and pass an orders assigning reasons and findings strictly in accordance with law within a fortnight from today.
Sd/-
JUDGE
kcm/ln