COMMISSIONER OF INCOME TAX AND ANOTHER V. M/S GHAZIABAD DEVELOPMENT AUTHORITY

IAPL/32/2022

AI Insights

The case involves an appeal by the Commissioner of Income Tax against the Ghaziabad Development Authority, challenging the order of the Income Tax Appellate Tribunal, Delhi. The Tribunal had set aside the proceedings initiated under Section 263 of the Income Tax Act, 1961 by the Commissioner of Income Tax, Ghaziabad, on the grounds that the initiation was without jurisdiction and constituted merely a second opinion on the assessment. The High Court's decision affirmed the Tribunal's findings, emphasizing that the assessing officer had taken cognizance of the material and arrived at a proper conclusion, thus no interference was warranted under Section 263.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 719317 (HC-ALLAHABAD)
• Appeal Type: Others
• Pronouncement Date: 24-03-2022
• Assessment Year: misc
• Other Referred Cases: CIT V/s Rajesh Kumar Pandey (2012) 25 Taxman. com 242 (Alld.)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: ASHISH AGRAWAL
• Keywords: Assessment Year; Income tax appeal; Income tax appellate tribunal; Jurisdiction; Show cause notice; Second Opinion
• Section: 263; 260-A

Judgement Text

"Court No. - 3 Case :- INCOME TAX APPEAL No. - 32 of 2022 Appellant :- Commissioner Of Income Tax And Another Respondent :- M/S Ghaziabad Development Authority Counsel for Appellant :- Ashish Agrawal Hon'ble Surya Prakash Kesarwani,J. Hon'ble Jayant Banerji,J. Heard Sri Ashish Agarwal, learned counsel for the petitioner-Income Tax Department. This Income Tax Appeal under Section 260-A of the Income Tax Act, 1961 (hereinafter referred to \"as the Act, 1961\") has been filed by the department praying to set aside the order dated 10.06.2019 passed by the Income Tax Appellate Tribunal, Delhi Bench \"C\" New Delhi in ITA No. 2399/DEL/2014 for Assessment Year 2009-10. In the memorandum of appeal, the following grounds have been taken to challenge the aforesaid impugned order, as under:- 1. Because the Income Tax Appellate Tribunal has erred in law as well as on facts and circumstances of the case by holding that the proceeding initiated under section 263 of the Income Tax Act was bad in law. 2. Because the proceedings under Section 263 of the Income Tax Act was conducted by the Ld. Commissioner of Income Tax, Ghaziabad. Only the show cause notice was signed by ITO (Tech.). Moreover, it was clearly mentioned in the show cause that ITO (Tech.) was directed to communicate the assessee to appear before the Ld. CIT, Ghaziabad. All the proceedings under Section 263 of the Income Tax Act including issuance of notices, orders, hearing, entries in order sheet, etc. were all made by Ld. CIT, Ghaziabad. There was no delegation of any powers by the Ld. CIT and the show cause notice do not suffer from any illegality. 3. Because the Assessing Officer had not verified on the facts of the assessee's case during the assessment proceeding. 4. Because the finding that the order under section 263 of the Income Tax Act was merely a second opinion is incorrect and has been recorded without there being any adjudication by the Hon'ble Tribunal. The same is based on surmises and conjectures. 5. Because the judgment, so referred in the case of Rajesh Kumar Pandey by the Hon'ble Tribunal is not applicable to the facts and circumstances of the present case. The following substantial questions of law have been framed in the memorandum of appeal, as under:- 1. Whether the Hon'ble Income Tax Appellate Tribunal committed illegality in ignoring that the order under Section 263 of the Income Tax Act was passed by the Ld. Commissioner of Income Tax, Ghaziabad and that it was clearly mentioned in the show cause notice that ITO (Tech.), Ghaziabad was only directed to communicate the assessee to appear before the Ld. CIT, Ghaziabad? 2. Whether the Income Tax Appellate Tribunal committed illegality in relying upon the judgment in the case of CIT V/s Rajesh Kumar Pandey (2012) 25 Taxman. com 242 (Alld.) which deals with the procedure of service of notice whereas the instant case is not alike? 3. Whether when all the proceedings under section 263 of the Income Tax Act including issuance of notices, orders, hearing, entries in order sheet, etc. were all made by Ld. CIT, Ghaziabad, was the Income Tax Appellate Tribunal was justified in setting aside the order passed under Section 263 of the Act? Perusal of the impugned order of the Tribunal shows that the Tribunal has allowed the appeal of the respondents on three points:- Firstly- The notice for initiation of the proceedings under Section 263 of the Income Tax Act, 1961 was without jurisdiction, as the notice was signed by the ITO (Tech.) and not by the Commissioner. Secondly- The assessing authority has taken cognizance of the material available and have arrived at proper conclusion. Thirdly- The order passed under Section 263 of the Act is merely the second opinion, which is not permissible under the provisions of the Act, 1961. On the basis of the aforesaid three findings, the appeal of the respondent- assessee was allowed. If any of the three findings of the Tribunal is sustainable, then the impugned order of Tribunal cannot be said to be erroneous. Perusal of the grounds of the appeal and the alleged substantial question of law as afore-quoted would clearly reveal that the appellants have not disputed or attacked at all the second finding of fact recorded by the Tribunal to the effect that after going through the assessment order, the assessing officer has also taken cognizance of the material available and has arrived at a proper conclusion. Since Tribunal has recorded finding of fact that conclusions arrived at by the assessing authority are proper and there is no ground for interference with the assessment order by the Commissioner under Section 263 of the Act, 1961, and also since the second finding of fact has not been attacked or disputed before us hence, the finding of fact recorded by the Tribunal, cannot be said to suffer from any infirmity or perversity. Thus, the matter is concluded by findings of fact. No substantial question of law is involved in the present appeal. Consequently, the appeal is dismissed. Order Date :- 24.3.2022 T.S. Digitally signed by TRIBHUWAN SINGH Date: 2022.03.25 16:54:35 IST Reason: Location: High Court of Judicature at Allahabad "