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TAXAP/45/2009 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 45 of 2009
With
TAX
APPEAL No. 52 of 2009
With
TAX
APPEAL No. 53 of
2009
=========================================================
COMMISSIONER
OF INCOME TAX-III - Appellant(s)
Versus
MICRO
FORGE (INDIA) LIMITED - Opponent(s)
=========================================================
Appearance
:
MRS
MAUNA M BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 02/02/2010
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The Commissioner of Income-tax III,
Rajkot has filed these three Tax Appeals under Section-260A of the
Income-tax Act, 1961 for the assessment years 1996-97. 1997-98 and
1998-99 proposing to formulate following substantial questions of
law for determination and consideration of this Court;
TAX
APPEAL NO.45 OF 2009
(i)
Whether, on the facts and in the circumstances
of the case, the Income tax Appellate
Tribunal is right in law in considering the revised return, which
is filed by the assessee beyond
time limit prescribed under Section 139(5) of the Income-tax Act ?
(ii) Whether, on the
facts and in the circumstances of the case, the Income tax
Appellate Tribunal is right in law in deleting addition of
Rs.1,23,15,820/- made by the Assessing Officer on account of low
yield and low gross profit ?
(iii) Whether, on the
facts and in the circumstances of the case, the Income tax
Appellate Tribunal is right in law in deleting disallowance of
depreciation of Rs.11,38,358/-, as claimed by the assessee in the
revised return ?
(iv)
Whether, on the facts and in the circumstances of the case, the
Income-tax Appellate Tribunal is right in law in deleting
disallowance of deduction of interest of Rs.87,99,517/- as claimed
by the assessee by filing revised return, which was filed beyond
time limit prescribed under Section 139(5) of the Income-tax
Act ?
(v)
Whether, on the facts and in the circumstances
of the case, the order passed by the Income-tax Appellate Tribunal
is perverse or not ?
TAX
APPEAL NO.52 OF 2009
(i)
Whether, on the facts and in the circumstances of the case, the
Income tax Appellate
Tribunal is right in law in coming to the conclusion that revised
return filed by the assessee is legal, valid and lawful.
(ii) Whether, on the
facts and in the circumstances of the case, the Income tax
Appellate Tribunal is right in law in deleting addition of Rs.42
lakhs made by the Assessing Officer on account of low yield and low
gross profit ?
(iii)
Whether, on the facts and in the circumstances of the case, the
order passed by the Income tax Appellate Tribunal is perverse or
not ?
TAX
APPEAL NO.53 OF 2009
(i)
Whether, on the facts and in the circumstances of the case, the
Income-tax Appellate
Tribunal is right in law in coming to the conclusion that revised
return filed by the assessee
is legal, valid and lawful ?
(ii)
Whether, on the facts and in the circumstances of the case, the
order passed by the Income Tax Appellate tribunal is perverse or
not
?
Heard Mr. B.B.Naik,
learned Senior Counsel appearing for the Revenue and perused the
orders passed by the authorities below. So far as question regarding
consideration of revised return under Section 139(5) of the Income
Tax act, 1961 is concerned, the Revenue has raised this issue in all
the three Appeals. For assessment year 1996-97, the order of the
Tribunal was challenged on the ground that the revised return was
filed beyond the period of limitation as prescribed under Section
139(5) of the Act. It was also contended by Mr.Naik that the
assessee cannot be permitted to file revised return on the basis of
revised accounts which were not approved by the Annual General
Meeting. We have considered this issue and also perused the order
passed by the authorities below. The question of limitation will
arise only in the first year i.e. 1996-97 and for that year the
revised return was filed on 29.1.1999 whereas the assessee was
supposed to file revised return at any time before expiry of one
year from the end of the relevant assessment year or before the
completion of the assessment, whichever is earlier. So far as
assessment years 1996-97 is concerned, period of limitation expired
on 31.3.1998 and the revised return was filed thereafter and hence
prima facie it appears that the revised return was filed after the
period of limitation expired and hence we are of the view that
substantial question of law would arise for assessment years
1996-97.
For the year 1996-97 the
second question is with regard to addition made by the Assessing
Officer on account of low yield and low gross profit. This question
is in the realm of appreciation of the evidence and both the
appellate authorities have considered the facts and evidence and
finding given by them is finding of fact. We are, therefore, not
inclined to frame this question. The question Nos.3 and 4 are based
on the first question and they being consequential we formulate the
same. The question No.5 is in respect of perversity and
non-application of mind. We are of the view that looking to the
order passed by the Tribunal it cannot be said that the order is
passed without any application of mind or it cannot be said that it
is perverse order and hence we are not inclined to frame the said
question.
In the result Appeal for
the assessment years 1996-97 is admitted and question Nos.1, 3 and 4
referred to hereinabove are formulated for determination and
consideration of this Court.
So far as assessment
years 1997-98 and 1998-99 are concerned, the first question is with
regard to validity of revised return filed by the assessee under
Section-139(5) of the Act. Since the return was filed well within
the period of limitation and also it is based on the revised
accounts subsequently approved in the Annual General Meeting, we are
of the view that there is no infirmity in such account and findings
recorded by the appellate authorities do not call for any
interference as no substantial question of law arises out of the
order of the Tribunal.
The question No.2 in
Appeal for assessment year 1998-99 is with regard to addition of
Rs.42 lacs made by the Assessing Officer on account of low yield and
low gross profit. This is in the realm of appreciation of evidence
and findings arrived at by the appellate authorities are based on
finding of fact and hence no question of law arises from the order
of the Tribunal. The question No.3 is with regard to perversity and
for the reasons recorded earlier the same cannot be said to be a
substantial question of law and hence we dismiss the Appeal for the
assessment years 1997-98 and held that no substantial question of
law arises from the order of the Tribunal.
The question No.2 in
Appeal for assessment year 1998-99 is with regard to perversity and
for the reasons recorded earlier it cannot be said to be a
substantial question of law. Hence, the Appeal for assessment years
1998-99 is also dismissed.
In the result Appeal for
the year 1996-97 i.e. Tax Appeal No.45 of 2009 is admitted and
remaining two Appeals i.e. Tax Appeal Nos.52 and 53 of 2009 for
assessment years 1997-98 and 1998-99 are dismissed.
Office is directed to
place copy of this order in each of these three Tax Appeals.
(K. A. PUJ, J.) (RAJESH H. SHUKLA, J.)
kks
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