JOSE KURUVINAKUNNEL Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) The petitioner is challenging Exts. P9 order passed by the second respondent Income Tax Appellate Tribunal, Ext P10 concurring order dated the same day, passed by the Accountant Member and also Ext. P14 order dismissing Exts. P11 to P13 applications for rectification of the errors filed under Section 254(2) of the Income-tax Act. The sequence of events is as follows: The petitioner is an assessee on the files of the first respondent. Assessment was completed in respect of the assessment years 1996-97 to 2000-01, which however was sought to be re-opened by the assessing authority for the reasons recorded, stated as identical for all the years as Borne by Exts. P1 end P2 produced in respect of the assessment years 1996-97 and 1998-99. The original assessment for the year 1996-97 was a scrutiny assessment under Section 143(3) of the Act and for the subsequent years, the assessment was completed by way of summary assessment under Section 143(1)(a) of the Act. Re-opening of the assessments in respect of the above different years was subjected to challenge by filing appeals before the second respondent, wherein Ext. P3 common order was passed by the Tribunal on 8.12.2006 holding that there was absolutely no reason for re-opening the assessment for the year 1996-97. Accordingly, the assessment re-opened in respect of the said year was set aside, observing that the Assessing Officer had proceeded, taking shelter under Section 14 of the Act, for making a rowing and fishing enquiry. In respect of the assessment year 1997-98, the Tribunal observed in paragraph No. 15 of Ext. P3 order that the reasons stated by the Assessing Officer were the same as given to the assessment year 1996-97. It was further observed by the second respondent that formation of the belief should be based on some definite, concrete and reliable materials and thus came to the finding that in respect of the assessment year 1997-98, it was only vague and hence interference was made in respect of the said year as well.

(2.) However with regard to the remaining years, it was observed by the Tribunal that the there was lack of materials to decide the issue and accordingly, the matter was remanded to the Commissioner of Income Tax (Appeals) with a specific direction to consider the matters separately, as specifically observed in paragraph 19. Pursuant to Ext. P3 order passed by the Tribunal, the matter was re-considered by the Commissioner of Income Tax who passed Ext. P4 order observing that the reasons recorded by the Assessing Officer in respect of the assessment year 1998-99 were the same as in respect of the assessment years 1996-97 and 1997-98. After referring to the facts and figures in respect of the different assessment years and also taking note of the specific direction contained in the remand order passed by the Tribunal vide Ext. P3, it was held by the Commissioner that initiation of the proceedings under Section 148 for the assessment years 1998-99 to 2000-2001 was not valid and accordingly, the appeals preferred by the petitioner were allowed.

(3.) Met with the situation, the Revenue preferred appeals (Exts. P5 to P7) before the second respondent. After hearing the matter, the Second respondent passed Ext. P9 order remanding the matter to the Commissioner for considering the case on merits, after arriving at a finding that there were valid reasons for re-opening of the assessment by the Assessing Officer. The Judicial Member relied on the law declared by the Apex Court in Asstt. CIT v. Rajesh Jhaveri Stock Brokers (P.) Ltd., 2007 291 ITR 500, while the Accountant Member wrote a concurring order as borne by Ext. P10, however observing in paragraph 2 that there was no direct application of the decision rendered in Rajesh Jhaveri Stock Brokers (P.) Ltds. case . But it was made clear that the matter had to be considered by the appellate authority on merits, as ordered by the Judicial Member, observing that the reasons recorded by the Assessing officer for re-opening of the assessment satisfied the conditions laid down under Section 147 of the Act. Contending that the said verdict passed by the Tribunal was very much contrary to the verdict already passed by the Tribunal as borne by Ext. P3 and that it was not correct or proper to have taken a different view, being a Co-ordinate Bench, the assessee preferred Exts. P11 to P13 applications for rectification, stating that there was error apparent on the face of the records. The said petitions were considered by the second respondent and they were dismissed as per Ext. P14 order, holding that there was no mistake apparent on the face of the records, so as to invoke the power under Section 254(2) of the Income-tax Act, which in turn is under challenge in this Writ Petition.