Gangadhar Narsingas Agrawal (HUF) v Asstt CIT

Case Laws Analysis
REFERRED CIT v. Bhan Textile (P) Ltd. 2008 TaxPub(DT) 1690 (Del-HC)
REFERRED V.K. Packaging Industries v. Tax Recovery Officer & Ors. 2004 TaxPub(DT) 1262 (All-HC)
REFERRED CIT v. Basumati (P) Ltd. 1989 TaxPub(DT) 0474 (Cal-HC)

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The Tax PublishersTax Appeal No 52 of 2014 2020 TaxPub(DT) 0794 (Bom-HC) : (2020) 317 CTR 0138 IN THE BOMBAY HIGH COURT M.S. SONAK & M.S. JAWALKAR, JJ. Gangadhar Narsingas Agrawal (HUF) v. Asstt. CIT Tax Appeal No. 52 of 2014 4 February, 2020 Appellant by: Ashok A. Kulkarni with Vinita Palyekar, Advocates Respondent by: Amira Abdul Razaq, Standing Counsel ORAL JUDGMENT *M.S. Sonak, J.* Heard Mr. Ashok Kulkarni along with Ms. Vinita Palyekar, the learned Counsels for the appellant and Ms. Amira Abdul Razaq, the learned Standing Counsel for the respondent. 2. This appeal was admitted on 9-9-2014 by making a speaking Order and incorporating therein the substantial questions of law. Accordingly, for convenience of reference, we transcribe the Order, dated 9-9-2014 :-- 'Question is whether Order, dated 16-11-2000 passed by Commissioner (Appeals) which remands the matter back to assessing officer completely wipes out the earlier order appealed against. 2. In earlier order, the assessee was not permitted deduction of Rs. 1,40,00,000 on account of mine refilling charges and initiated section 271 proceedings. Commissioner (Appeals) found some fault in the exercise of jurisdiction by assessing officer and remanded the matter back. However, in the process Commissioner (Appeals) did not observe anything expressly on the direction about initiating the penalty proceedings. 3. A fresh order was thereafter passed by assessing officer without observing on need to initiate section 271 proceedings therein. Perhaps on the strength of the earlier observation, the penalty proceedings have been taken up. The objection of assessee is earlier order did not survive and in absence of any specific direction to initiate such proceedings in later assessment order, the initiation itself is barred. 4. We have heard the respective counsels. 5. Admit on the following substantial questions of law :-- 1. Whether on the facts and in the circumstances of the case, there was jurisdiction in the respondent to levy the impugned penalty? 2. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in giving a finding that as at the relevant time, the Commissioner (Appeals) had the power to partially set aside an order of assessment and any finding in the order of assessment so set aside as regards satisfaction as no concealment survives after such set aside? 6. Advocate Ms. Desai waives notice for the respondent.' 3. The appellant in the present case filed a return of income disclosing a loss of Rs. 13,32,280 and net agricultural income of Rs. 10,500 for the assessment year 1997-98 before the concerned assessment officer (AO). By Order, dated 8-2-2000, made under section 143(3) of the Income Tax Act, 1961 (said Act), the assessing officer, disallowed the mining land restoration charges in an amount of Rs. 1,40,00,000 and added back this amount to the return income. In the said Order, dated 8-2-2000, the assessing officer, also made the following endorsement, which was to form a part of the Order :-- SUBSCRIBE FOR FULL CONTENT

The Tax PublishersTax Appeal No 52 of 2014
2020 TaxPub(DT) 0794 (Bom-HC) : (2020) 317 CTR 0138

IN THE BOMBAY HIGH COURT

M.S. SONAK & M.S. JAWALKAR, JJ.

Gangadhar Narsingas Agrawal (HUF) v. Asstt. CIT

Tax Appeal No. 52 of 2014

4 February, 2020

Appellant by: Ashok A. Kulkarni with Vinita Palyekar, Advocates

Respondent by: Amira Abdul Razaq, Standing Counsel

ORAL JUDGMENT

M.S. Sonak, J.

Heard Mr. Ashok Kulkarni along with Ms. Vinita Palyekar, the learned Counsels for the appellant and Ms. Amira Abdul Razaq, the learned Standing Counsel for the respondent.

2. This appeal was admitted on 9-9-2014 by making a speaking Order and incorporating therein the substantial questions of law. Accordingly, for convenience of reference, we transcribe the Order, dated 9-9-2014 :--

'Question is whether Order, dated 16-11-2000 passed by Commissioner (Appeals) which remands the matter back to assessing officer completely wipes out the earlier order appealed against.

2. In earlier order, the assessee was not permitted deduction of Rs. 1,40,00,000 on account of mine refilling charges and initiated section 271 proceedings. Commissioner (Appeals) found some fault in the exercise of jurisdiction by assessing officer and remanded the matter back. However, in the process Commissioner (Appeals) did not observe anything expressly on the direction about initiating the penalty proceedings.

3. A fresh order was thereafter passed by assessing officer without observing on need to initiate section 271 proceedings therein. Perhaps on the strength of the earlier observation, the penalty proceedings have been taken up. The objection of assessee is earlier order did not survive and in absence of any specific direction to initiate such proceedings in later assessment order, the initiation itself is barred.

4. We have heard the respective counsels.

5. Admit on the following substantial questions of law :--

1. Whether on the facts and in the circumstances of the case, there was jurisdiction in the respondent to levy the impugned penalty?

2. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in giving a finding that as at the relevant time, the Commissioner (Appeals) had the power to partially set aside an order of assessment and any finding in the order of assessment so set aside as regards satisfaction as no concealment survives after such set aside?

6. Advocate Ms. Desai waives notice for the respondent.'

3. The appellant in the present case filed a return of income disclosing a loss of Rs. 13,32,280 and net agricultural income of Rs. 10,500 for the assessment year 1997-98 before the concerned assessment officer (AO). By Order, dated 8-2-2000, made under section 143(3) of the Income Tax Act, 1961 (said Act), the assessing officer, disallowed the mining land restoration charges in an amount of Rs. 1,40,00,000 and added back this amount to the return income. In the said Order, dated 8-2-2000, the assessing officer, also made the following endorsement, which was to form a part of the Order :--