Karnataka High Court
The Commissioner Of Income Tax vs M/S Microland Ltd on 15 September, 2010
Bench: D.V.Shylendra Kumar, H.S.Kempanna
3
3. With the Tribunal having merely affirmed the"-..view
expressed by the Commissioner of Income Tax
effective order which perhaps has to bear it
appellate order passed by the Comi:nissionver_p of
[Appeals] as it is the Commissi0ner'~vvho has-"--l.alllo\}vedodither'9
appeal before him, reversed orderw: the
Assessing Officer as 'order dated
31.10.2001 and had officer was
Wrong in not the assessee as
disclosed or clairifi._e;«§l in a«..rnemo"fappended to the return of
income filed assessment year 1997-98.
4. The assessee V\lyl1oVhad":filed return on 28.11.1997 had
;"'Vvh_ile thle"irrcome of Rs.69,29,671/-- as income
earned"byl"way"o_f "rents received on some machinery leased
out assesslee and earned during the accounting period
~.l.l'_j':.-ucorrespondirig to the assessment year ie, during the period
'--be',éj_i1:nin'g with 1.4.1996 to 31.3.1997.
Effect to the CIT(A)
order dt 12.2.99
Add: Provision for
leave encashment
Add: Loss on sale
of research and
Development
assets
Add:
income
5,21.4_.O7,__
1,96; 500
Lease . _
7'6';37,5'78
Tax thereon V1 _,
Surcharge
Additional-_,ta){i'a't' _ .s___W__V M
A Pay"2ii3ie,
TDS _V' 25
tttt - -- ., :Pay&i§ble 84,4'v;'703
Advance l;f20,00,000
Excess 'paid' _% 35,59,297
Refunds * already =
issued " " 67,85,079
77 «i,Baiance Payable _:_
d/-
f '2_,55,08,664
75,5330;
Payable 1§,o9,e8;~7'24 9
[T.V.B. REDDY]
Dy. Commissioner of Income Tax
Central Circle -- 2(2), Bangalore."
«._8".:2.C , was by negativing the stand of the assessee to the
effect as submitted by Sri Pradeep Kar, the
representative before the assessing officer.
9
"Without prejudice to our contention'..,Viuitfh
respect of depreciation claimedon leased aS=sjets;'
the lease income accounted during' previous.__ A
year has been reduced as the entire 'issue
covered under block asseSSrnent;*'.. V " ' "
9. It is aggrieved by this order.flth_e"vassesseeappealed to
the Commissioner of Inclornge. under section
246 of the Act by filiin_g an"appeal."as?vd»oii.V'l9:4él2OOO.
10. It appeaiis, l7th'e assessee had made
an applicationl'unrdenlslectionv of the Act on 28.3.2001
before the settlepment' seeking for settlement of
the assessment in respect? of the assessee's undisclosed non-
:-lgleclaredC.in'rEoIrie.p_for thlemlassessment years 1994--95, 1995-96
and to '
ll, However, the assessee continued to prosecute its
l'b_.efore the Commissioner of Income Tax [Appeals]
the assessment order passed by the Assessing
Qfficer for the assessment year 1997-98 and the appellate
commissioner found merit in the appeal to accept the
Version or the stand of the assessee by passing a short,
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commission and in terms of its order dated 10.10.2001,
accepted the application for examination in terms of vtheéoffer
made by the assessee offering the amount
depreciation on the assets of the company "t'o',havef'beenl"
put to use during the period re1ev'ant1'_f_ffor t1ie"'a;sses:si1nefnt
years before the commission examine ftvhietpossibility'at
of settling the dispute, if any, bpetvvsli/pee_n"--the'assessee and the
revenue and the for offering
to tax the amount as income
of these A
13. It appears ccrmmission ventured to pass
a further order on the instance of the assessee
who itgéappearsl complained' that the revenue was not
inVonly'proCe.eding'«--against the assessee for bringing to tax the
during search on 28.3.2001 as the
Vincomellof the block period of ten years prior to the date of
but also simultaneously reopened the regular
--afssessmAents for some of the years covered under the block
and therefore the assessee was subjected to
,4/2
13
considerable hardship and as such directed
refund to the assessee the amount
the undisclosed income offered._vfoVr_ settle_nientv:,llbeiore "the " 9
commission as there was no progreiss,:for_»passingfinal orders
before the commission. tl§e.ll.sett.lem_ent. commission
by a further order dated o?n.:fvv.t'hf_e;tapplicatdion for
recalling filed by; cancelled its
earlier direction' tl:iyel"v--f--:unount, the result of
which is «way... tax by the assessee
though styled'-- asdisallowed':"depreciation being offered as
income by theassegssee 'la asremained with the revenue.
jp~5g...lE0fi1p1'ete thevflflnlarration of events, it was now the
reyefniiels a further appeal to the Tribunal under
4u,,,..t\,seCtio--n_l252 Act complaining that the commissioner of
.:l'ipe.':._g_income taxfihaslcommitted an error or illegality in upsetting
vthefalssessrnent order passed by the assessing officer for the
as.se's_sn1ent year 1997-98.
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16. It is aggrieved by this strange order suffered at the
hands of the Tribunal by the revenue, the presentflap_peval
under section 260~A of the Act.
17. We have heard Sri M V
central government standing_.couns'elll"appear.ing' l'for'Ity'he"'vo
appellants and Smt. S R counsel
appearing for the respondei'it --
18. Sri M V government
standing the has submitted
that even erroror illegality in the order
passed the appellate commissioner
without any 'or, and independent of any law or
atdany--------rate at variance with the statutory
sections 250 and 251 of the Act, has passed a
gmost'irreleva'I'it,'iV non-speaking order, not based on any
-..l,l'_f3-imayterial 'o_Ii7~ record, but by merely quoting the arguments
<«sé1id'.t_o rhave been addressed by the representative for the
"a.Vl"'-assessee and by opining that the action taken by the
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submits that when the revenue took up the matter by way of
appeal to the Tribunal, the Tribunal has acted in
arbitrary and whimsical manner by passing
we have extracted above and subhmitys that'tthé;. 'order visit'
nothing short of a mockery of the p:rovi_sioVnsi'~of'
bringing to tax the incomelfdisclosed,V '{_:d'isclosed,"Vl'
unearthed through search etc.,VAy.bu:t»--also an t apology for an
order to be passed under of Act.
20. Sri M V leétrnedf'senior---central government
standing counsel:Vapplea1*ln'gl_' the appellants has also
placed the recordsvofethe 'assessing officer and the appellate
commissionergfbefore submits the appeal has
to be allowed answering the questions raised in the appeal in
Vfavourxof the revenue and against the assessee.
«.21. 'The substance of the submission is that an
-..l,l'_jj-'.income v'olu3ntarily offered by the assessee disclosing it as
if 'ireiiltalymcome brought to tax correctly, legally and within the
"'pa_r_afneters of the Act to tax in terms of a proper assessment
19
order has been set aside by the Commissioner of Incom*e_>Tax
[Appeals] without any rhyme or reason and
appellate tribunal in further appeal by the revenue,
without assigning any reason or juistification -:for:"a;ffi_r1ninlg
the order of the Commissioner, but on'..irrelevan.t; .extraneous'=.p
considerations and such ordersqion the" first
appellate authority and 'hays:dyefiniltelylvgiven rise
to question as indicated of appeal and
it is required to be
22. Per learned counsel for the
respondent --_!fvelhemently urged that the
assessee cannot be"be'at'en."wVityh a stick for all times to come; that vvh.jens..the assessee found it was not making much ."head'w_ay onfitsélle-laim about the existence of a leasing activity proHd~u"ci_ng"'rental,'"income, the assessee had reconciled to accept l."the"*--vers.ion put forth by the revenue who had taken stand that the assessee did not have leasing activity nor business by leasing of its plant and machinery; that the if lsollcalled rental income from such activity is nothing short of 20 some undisclosed or suppressed income of earlier years etc.,; that when the assessee had reconciled to this_4.pos_ition on the stand of the department and had offerediyto . amount received by way of advance rentals from"it.s: lessee on if ' leasing of industrial gas cylinders,;'*Wétter°cylindersg capacitors and solar testing equipments, but v.the_"'r~eve:nue,'W nevertheless, pursuing for asse--ssi'ng"'--.the "very." income by reopening the assessments' also at the same time pursuing the to justify the assessment period under section l58BC of the assessee to have paid tax to be brought to tax both by way«.. of vreope_ne~dl assessments of the regular and aisoby way of block assessment for the in the circumstances, the appellate =».commi_ssion.er the tribunal were left with no option but
--«.l.l"j':v.-'to'-.pass orders as they have passed now; that the orders he "passed the appellate commissioner and as affirmed by the are justified in the facts and circumstances; that 23 the assessee before the Commissjloneru of' [Appeals] during the presentation of the by the Commissioner of Income * it paragraph of his order. b i V
25. We have found no evidence on record throwing any light onvthe 'iiV'._r'i._.'i;Vssue, namely, the taxability or ;'otliA;e,i'\Vis:e iRs.69,29,671/- which amount as rental income from its leasing._ak;;ytiVit3r"corresporidiiig to the period for the assessment__ye._ar l9"97u-98, l' A ' ._ '
26. stril{es_:us..rnost isfthe way the assessee has been I-bxllovlingiit-1 84*-1,('i cold"""and coming up with all sorts of of absolving itself of any tax liability the };o'cati1,é:1':,;ééifitai income of Rs.69,29,671/-- though the _h~.._ya'ssessee" in ;it;s.Vret,urn, in the first instance, filed Voluntarily offeredfllthis amount as rental income, but had only lsoughhtto take it out of the purview of the tax as income by /" I7 /77 l s 24 the ingenious way of claiming that it is covered by___ the assessment for the block period.
27. While we find the assessment order ._one"
containing any element of error or and correct assessment order as,_the asVs'essing"'officer has only brought to tax the income assessee and not otherwise and alsszijlligr theclaim that the Very income was.also subjheiot iffie assessment for the block appreciate the submissionsthewassessee in this regard and the that the rental income is actually the claim of the assessee for the bloclziperiod. in 28} on behalf of the assessee rather "Vinconsis-t_entv'andnot logical or rational as the assessee's Verslion' was that the amount detected during search a"s.'undiselosed income is sought to be offered as 'rental if for the three assessment years sought to be made 27 provisions under the Act were never availed of by.-.___the assessee.
30. The assessee, in fact, has preferred the Commissioner of Appeals byfiliinégj, 19.4.2000, immediately on the .4heels'._fof assessment order. Though the says on the basis of material the representative for the assessee, we available on record and commissioner in terms of commissioner and which record ._ us by the senior central government standing"counsedlgappearing for the revenue.
'l'hse¥'CO'nte-ntions"urged on behalf of the assessee are irrelevafilt finrnaterial for the purpose of upsetting the x°'"orderspass_ed byftyhe assessing officer determining the tax ""l.--:i.li'albilityg on-the basis of the voluntary return filed by the assess'ee,.A'ABut, the appellate commissioner embarks upon it the tax liability of the assessee to 'nil' on the V 28 income from rentals and the Income Tax Appellate Tribunal for no rhyme or reason does not interfere w'ith_'--«.Vt'h_is unsustainable order of the Commissioner, but .tjo'*compour1'd the matter further directs the assessing.offi_ceritoI.the If outcome of the proceedings "8 commission.
32. In the first instanc'e::,4_'_"the vvas for the period of ten yearsbetWe,en"A3O8.;'8l, The income offered'Vf_(.:v)rll:I1'z:v1:.2§ for year 199798 is the income period 1.4.1996 to 31.3.1997; or bad luck of the assessee thatlthel assessment year 1997-98 begins pfor" the accotunltinlg period immediately thereafter i.e., Therefore, the period involved is different for the block period cannot have any relevance, "effect or consequence in assessing the income for assessment year 1997-98 corresponding to the earning pi;e:1~iad'f1',4. 1996 to 31.3.1997. In this state of affairs, neither "Commissioner of Income Tax [Appeals] nor the appellate 9-7;, 30 being in existence nor the settlement » proceedings going on, any reference _ to '_e'itl1e:r_» proceedings has lost all significance and only thing that remains is as.»'to.__.whethJei* order is sustainable or otherwise;li'"llherefore',-forthis} reason, while the orders passed and the Commissioner of Income T sustainable and the questions answer are required to be revenue and against the assesseew examine the further submission"-,of"learnedjcoulnsel'"for the respondent -- assessee that if such is sthe.VstandAl._tow:bie4taken, the assessee's right of appeal lte~stingl.'th.ecorrectness or otheiwise of the order .Vpi=eempted and the matter is required to be remlandedl t'o:l'Vth_eftiommissioner for a proper examination of 'lithe app'eal..__'of assessee on its merits, particularly, for lWll'llivjlyustificpationi---Lor otherwise of the order passed by the assessing officer.
- 'Z ;/ z 32 other facts not accepted by the assessee, perhapeiita appeal and examination by the apphellaltge' have justified. Such is not the situatiiongzthe What has been done by the assievss,ing.V.officer 9' examination of the return filed fassessflee and determined the tax liability Vtbaseidic-in With the note contained in allfits significance which alone is; _seeking for remand, that argument and at any rate not accepted of remanding the matter for examinationfof the the first appellate authority afresh. V Smt. S R Anuradha, learned counsel for the "res-pondveiit__Jgassessee to the effect that the income as ifioffered Zasslessee and as assessed by the revenue i.e., astsessing officer for the assessment year 1997-98 assessed again in any of the assessment year as H Vlwould amount to taxing the same income more than o4r2.Vce, definitely sounds good and merits acceptance.
s V 33
37. However, it is made clear that even assuming Vt}1'at»the revenue has an occasion to reopen any of the H concluded for the earlier years, in -». assessments the income now coveriediihyj order in the year 1997-98 cannot ifigihiire liability.
38. With such obserVation,_e_'th9e-.vagipeeai,Aiis9a].lowed, but in the facts and circinnst-ancies, p.artije.sV_are Vleft to bear their respective costsr b aaaa Sd i JUDGE Sd//..
JUDGE ' ' .,;r.::~.i>'«"f3