"f:;'-^S| 1 '"3a^'" ^ ^ SS^^S^ HIGH COURT OF CHHATTISGARH AT BILASPUR Tax Case (Income Tax Appeal) No.49 of 2008 APPELLANT: Commissioner of Income Tax, Bilaspur (CG) Versus RESPONDENT: Shree Radhe Industries Ltd., Opp. CMD College, Link Road, Bilaspur (CG) JUDGWIENT FOR CONSIDERATION HON'BLE SHRI R.N. CHANDRAKAR. J o^t^^-.ejz- <r -f^ Su/- JUDGE -10-2010 Sd/- R.N. Chandrakar Judge POST FOR JUDGMENT ON ? OCTOBER, 2010 DhirendiaMlstaa Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Tax Case (Income Tax Appeal) No,49oL2008 APPELLANT: Commissioner of Income Tax, Bilaspur (CG) Versus RESPONDENT: Shree Radhe Industries Ltd., Opp. CMD College, Link Road, Bilaspur (CG) Present: Shri Rajeev Shrivastava, counsel for the appellant. Shri Sunil Otwani, counsel for the respondent. DjyisiorLBench: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar. JJ. JUDGMENT (Delivered on -f^ October, 2010) The following judgment of the Court was delivered by Dhirendra Mishra, J. 1. This appeal has been admitted on the following substantial questions of law:- • "Whether the Income Tax Appellate Tribunal was justified in canceling the order only on the ground that the order was based on mere change of opinion while overlooking the facts that specific infirmities and errors had been clearly mentioned in the order? ' • Whether the concept of "change of opinion" is applicable to the provisions of section 263 especially as the order of the Commissioner of Income Tax was not based on any change of opinion but on the errors highlighted in the order?" 2. Briefly stated facts of the case are that the assessee filed his return for assessment year 2003-04 disclosing the total income (loss) of Rs.1,22,52,793/- under the provisions of the Act and Rs.51,99,173/- ^•"•g^y underSection 115-JB ofthe lncomeTaxAct,1961 (for short'the Act'). The Assessing Officer passed the order of assessment under Section 143(3) computing the total income at nil. 3. On examination of the record, CIT foundthat while making assessment the A.O. failed to examine certain aspects as detailed in paragraph-2 of its order. 4. Accordingly, a notice under Section 263 (1) of the Act was issued to the assessee and after affording the assessee an opportunity of hearing and after considering written submissions on behalf of the assessee, defects/short comings in the A/R's certification of the Chartered Accountant's report as detailed in paragraph-8 of the order were pointed out. It was also observed that the above issues were not examined by the A.O.. The A.O. did not bother to examine the above issues as is evident from the order under review and the A.O. completed assessment in the scrutiny case in a casual manner and thus, the order of the A.O. was erroneous and the same was prejudicial to the interest of the Revenue. 5. It was further observed that the A.O. has completed assessment in utter haste without proper and thorough enquiry and investigation which were called for in View of complexities of the case. It was accordingly held that the order passed by the A.O. is erroneous and prejudicial to the interest of the revenue and the same was cancelled under Section 263 of the Act except for the issues pending in appeal before the CIT (Appeals) Bilaspur. The A.O. was furi:her directed to frame the assessment afresh after giving the assessee opportunities of being heard and after examination of documents and submissions vis- a-vis the findings and analysis made in the order. 6. The assessee went up in appeal against the order of the CIT before the Tribunal, however, the Tribunal cancelled the order of the CIT with an observation that "a close perusal ofthe paper book factually reveals that the AO has also considered the above details, which, in the opinion of CIT, were not examined by the AO. Since the AO has considered all the relevant facts and evidence available on record in connection with objections for which the CIT has observed that those were not examined by the AO. In our considered opinion, such action of CIT is only based upon a change ofopinion which is not permissible under law, in view of the decisions of various Courts and Tribunals." 7. Learned counsel for the appellant submitted that CIT after careful examination of the record has detailed various aspects in its order which clearly points out that assessment was completed in haste and without properenquiry. The order under Section 263 was passed after due notice and after affording opportunity of hearing to the assessee, however, the ITAT without dealing with various aspects detailed in the order of the CIT has cancelled the order with an observation that the order under Section 263 of the Act is nothirtg but is based on mere change of opinion whichis not permissible underthe law. 8. Retying upon decisions of this Court in the matters of Commissioner of Income Tax, Bilaspur Vs. Harish Kumar Shah {Tax Case No.46 of 2008, decided on 8 January, 2010} and Commissioner of Income Tax, Bilaspur (CG) Vs. Dr. Smt. Anju Goyal {Tax Case No.36/2008, s^ decided on 1 September, 2009}, it was argued that the present case is squarely covered by the taw laid down by this Court in the aforesaid judgments. 9. On the other hand, learned counsel for the respondent/assessee submitted that the instant appeal has been preferred by the CIT whereas the order under Section 263 (1) has been passed by the CIT in exercise of its guas/ judicial function. The appeal by the revenue under Section 260-A can be preferred by the Chief Commissioner or the Commissioner of Income Tax. Filing of appeal by the CIT for vindication of its own order passed under Section 263 (1) while discharging quasi judicial function is impermissible and the instant appeal ought to have been filed by the Chief Commissioner. On this ground alone, the appeal deserves to be dismissed. 10. It was further argued that the Tribunal has passed the impugned order after going through the relevant documents and evidences which have been placed before it in form of paper book and the Assessing Officer has also completed the assessment after perusing the same. 11. In these circumstances, the order of the Commissioner under Section 263 (1) cannot be affirmed by setting aside the order of the Tribunal only on the ground that the Tribunal has not dealt with errors and infirmities pointed out by the CIT bya reasoned order. At the most, the matter may be remanded to the Tribunal for passing a reasoned order afresh after affording opportunity of hearing to the parties. 12. Heard learned counsel forthe parties. 13. So far as objection of the respondent against the appeal preferred by the CIT against the order of the Tribunal is concerned, though CIT has passed the order under Section 263 (1) of the Act in discharge of its quasi judicial function, but the instant appeal has been preferred by the CIT in his administrative capacity in the interest of the revenue. Therefore, we are of the considered opinion that the instant appeal cannot be dismissed only on the ground that it has been filed by the same authority whose order has been reserved by the impugned order. 14. After going through the orders of the A.O. as also of the CIT passed under Section 263 (1) and the impugned order, we find that the Tribunal, without adverting to the reasons assigned by the CIT for canceling the order of assessment passed by the A.O., has cancelled the order of the CIT on the ground that the same is based on mere change of opinion. The issue involved in this appeal has already been considered and decided by this Court in the matters of Dr. Smt. Anju Goyal and Harish Kumar Shah (Supra). l5.For the aforesaid reasons, we are of the opinion that the impugned order of the ITAT cannot be sustained. Accordingly, the same is hereby set aside. The matter is remanded to the Tribunal to decide the appeal preferred by the assessee against the order of CIT afresh by a reasoned order after affording opportunity of hearing to the parties. Sd/- Dhu'endra Mishra Judge Sd/- R.N. Chandrakar Judge Barve