DT u - HIGH COURT OF CHHATTISGARH AT BILASPUR Tax Case (Income Tax Appeal) No.48 of 2008 APPELLANT: Assistant Commissioner of Income Tax, Circle 2, Bilaspur Versus RESPONDENT: M/s Vishwakarma Fabricators, Manendragarh (CG) JUDGMENT FOR CONSIDERATION Sd/- q.-10-2010 HON'BLE SHRI R.N. CHANDRAKAR, J 3 Sd/- R.N. Chandrakar Judge -^ POST FOR JUDGMENT ON 7 OCTOBER, 2010 Sd/- Dhirendra Mishra Judge H< hiah COURT OF CHHATTISGARH AT BILASPUR Tax Case (Income Tax Appeal) No.48 of 20^8 APPELLANT: Assistant Commissioner of Income Tax, Circle 2, Bilaspur Vers.us RESPONDENT: M/s Vishwakarma Fabricators, Manendragarh (CG) Present: Shri Rajeev Shrivastava, counsel for the appellant. Shri Shashank Dubey, Sr. Advocate with Shri Pravin Tulsiyan, Advocate for the respondent. Division Bench: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar, JJ. JUDGiB/IENT (Delivered on ^''October, 2010) The following judgment of the Court was delivered by Dhirendra hflishra, J. 1. This appeal has been admitted on the following substantial question of law:- • "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: At the outset, Shri Shashank Dubey, learned senior counsel appearing on behalf of the respondent/assessee submitted that the respondent has raised preliminary objection with regard to the maintainability of the appeal on the ground that the instant appeal has been filed by the Assistant Commissioner of Income Tax, Circle-2, Bilaspur whereas under sub-section (2) of Section 260-A of the Act, the appeal can be filed before the High Court only by the Commissioner or the Chief dS) -%'i "-- ^^ '^'isaaa^ 7A S vf!f As! ff ij Commissioner of the Income Tax or an assessee and none else. He furi:her submitted that the Assistant Commissioner as defined under sub-section (9A) of Section 2 of the Act means a person appointed to bean Assistant Commissioner of Income Tax or a Deputy Commissioner of Income Tax under sub-section (1) of Section 117 whereas, the Commissioner as defined under sub-section (16) of Section 2 means a person appointed to be a Commissioner of Income Tax under sub-section (1) of Section 117. Sub-section (2) of Section 260A provides that Chief Commissioner or Commissioner or an assessee aggrieved by any order passed by the appellate Tribunal may file an appeal to the High Court. 3. Relying upon the decision of 7 Judge Bench of the Supreme Court in In re. Art 143 Constitution of India and Delhi Laws Act (1912) etc. {AIR (38) 1951 SC 332}, it was argued that if authority is given any power for doing any act by legislation, then such act is to be done in that specific manner by that person and performance in any manner or by any person other than specified is impliedly prohibited. 4. On the other hand, learned counsel for the appellant would argue that in the instant case, in reply to the preliminary objection, the Commissioner of Income Tax has filed his affidavit and averred that the Commissioner of Income Tax has filed Vakalatnama for presenting an appeal and the specific question of law has been approved by the Chief Commissioner of Income Tax. In the cause title of memo of appeal, Assistant Commissioner of Income Tax has been mentioned as appellant because appeal before the Tribunal preferred by the assessee was titled as M/s Vishwakarma Fabricators Vs. Assistant ^2 Commissionerof Income Tax and, therefore, while challenging the order of the Tribunal by way of appeal before the High Court, Assistant Commissioner has been mentioned as appellant. 5. In In re. Art 143 Constitution of India and Delhi Laws Act (1912) ete. (Supra), the President of India made a reference underArticle 143 of the Constitution asking the Court's opinion on the 3 questions relating to constitutional validity of certain provisions of Delhi Laws Act, 1910, Ajmer-Merwara (Extension of Laws) Act, 1947 and the part C State (Laws) Act, 1950 or any of the provisions thereof. The questions were in respect of delegation of legislative power. The Hon'ble Supreme Court, while considering the power of Parliament to delegate its essential legislative function to others, whether the State Legislature or Executive Authorities, observed that if authority is given expressly by affirmative words upon a defined condition, the expression of that condition excludes the doing of that act authorized under other circumstances than those as defined. 6. However, the instant appeal is directed against the order of the Tribunal passed in appeal preferred by the assessee against the order of CIT (A). Since the parties were described by the assessee before the Tribunal as "M/s Vishwakarma Fabricators Vs. Assistant Commissioner of Income Tax, Circle-2, Bilaspur", in the appeal preferred by the revenue, the appellant has referred as Assistant Commissioner as per cause title of the impugned order. 7. Takinginto consideration the affidavit of Commissioner of Income Tax which has not been rebutted by the assessee that the instant appeal Ts^' r'^.-A -^a has been filed as per authorization ofthe Commissioner of Income Tax and the question of law has been finalized by the Chief Commissioner of Income Tax, we are of the opinion that the appeal cannot be dismissed at the threshold on the ground that cause title in the memo of appeal mentions Assistant Commissioner as appellant. 8. Briefly stated facts of the case are that a survey was conducted under Section 133-A of the Income Tax Act, 1961 (for short 'the Act') in the business premises of the assessee on 19-1-2005. The assessee filed his return of income for the assessmentyear 2005-06 disclosing the total income of Rs.14,69,286/-. The Assessing Officer completed the assessment under Section 143(3) on total income of Rs.15,30,750/- and made an adhoc addition ofRs.61,140/-. 9. On examination of the record, CIT found certain infirmities in the assessment of the income as detailed in paragraph -2 of its order. lO.Accordingly, a notice under Section 263 (1) of the Act was issued to the assessee. On receipt of notice from the CIT, the assessee filed written submissions. After affording opportunity of hearing to the assessee and considering its written submissions, it was found that certain aspects have not been taken up by the AO as detailed in paragraphs 5.1, 5.1.1, 5.1.2, 5.2, 5.3, 5.3.1, 5.4 and 5.5. It was held that the assessment was completed by the AO in utter haste, failing in the process both to examine the facts properly and also in initiating penalty proceedings for the concealment of particulars of income by the assessee. Accordingly, it was held that the order of the A.O. is erroneous and prejudicial to the interest of the revenue and the order T2/r of assessment was cancelled under Section 263 of the Act with direction to the A.O. to frame it afresh. It was further directed that while passing the order de novo, the A.O. will examine the issues mentioned in the order keeping in view the actions contemplated under Section 271 (1 )(c) of the Act. 11. 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 of the relevant documents and evidences, which have been placed before us in form of paper books, makes it clear that the assessee has placed all the documents and evidences in respect of these items before the A.O. and the A.O. after perusing the same has completed the assessment. Since the assessment under section 143(3) was completed by the A.O. only after perusing the relevant details and evidences placed by the assessee, the action of Id. CIT in invoking the provision under section 263 is nothing but is based on mere change of opinion, which is not permissible under the law as held by the different Courts and Tribunals." 12. 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 proper enquiry. 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 ^^3^^^^^^-^^^^^^^^^^^^^^^^ ^y' :1 Barve order under Section 263 of the Act is nothing but is based on mere change of opinion which is not permissible under the law. 13. Relying upon decisions of this Court in the matters of Commissioner of Income Tax, BilaspurVs. Harish Kumar Shah {Tax Case No.46 of 2008, decided 6n 8 January, 2010} and Commissionerof Income Tax, Bilaspur (CG) Vs. Dr. Smt. Anju Goyal {Tax Case No.36/2008, decided on 1 September, 2009}, it was argued that the present case is squarely covered by the law laid down by this Court in the aforesaid judgments. 14. Heard learned counsel for the parties. l5.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). l6.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^arti^___ ; Sd/- sd/- I R.N. Chandrakar Dhirendra Mishra I Jadge