Case Law Details
Pr. CIT Vs Nokia India Pvt. Ltd. (Supreme Court of India)
Conclusion: High Court was not justified in dismissing the appeal on the ground that the appeal did not involve any substantial question of law as it had to decide validity of s. 148 notice, whether notice based on change of opinion, assessed reasons to believe and findings recorded by ITAT on merits whether was legally sustainable. Therefore, the matter was remanded back to High Court.
Held: Assessee challenged the notice issued under section 148 contending inter alia that since the impugned notice was based on “change of the opinion” and hence bad in law which was upheld by the ITAT resulting in allowing assessee’s appeal and further by dismissing the Revenue’s appeal by High Court. Revenue had felt aggrieved by the order of the High Court dismissing their appeal in limine and had filed the present appeal by way of special leave in this Court. It was held High Court should decide these four questions raised by Revenue (i) validity of s. 148 notice where assessment was made u/s 143(1) & not u/s 143(3), (ii) whether notice could be said to be based on change of opinion if there was no foundation to form any such opinion, (iii) Whether requirements of s. 148 were satisfied, namely, that it contained the facts constituting the “reasons to believe” and furnished the necessary details for assessing the escaped income and (iv) whether finding recorded by ITAT on merits was legally sustainable on their respective merits while deciding the appeal. High Court was not justified in dismissing the appeal on the ground that the appeal did not involve any substantial question of law.
FULL TEXT OF THE SUPREME COURT JUDGMENT
1. Leave granted.
2. This appeal is filed against the final judgment and order dated 21.04.2017 passed by the High Court of Delhi at New Delhi in ITA No.854 of 2016 whereby the Division Bench of the High Court dismissed the appeal filed by the appellant herein.
3. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.
4. By impugned order, the Division Bench of the High Court dismissed the Revenue’s (appellant herein) appeal filed under Section 260-A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) on the ground that it did not involve any substantial question of law within the meaning of Section 260-A of the Act.
5. In other words, the High Court was of the view that since the appeal did not involve any substantial question of law, it deserves dismissal in limine.
6. The appellant is the Revenue (Commissioner of Income Tax) and the respondent is an assessee. The issue arises out of an assessment year (1999-2000).
7. The issue essentially relates to legality and correctness of the notice issued by the Assessing Officer (AO) to the respondent under Section 148 of the Act and to the consequential determination made by the AO in the assessment order for which the impugned notice was issued to the respondent.
8. The objections raised by the respondent (assessee) to the notice contending inter alia that since the impugned notice was based on “change of the opinion” and hence bad in law was upheld by the ITAT resulting in allowing the respondent’s appeal and further by dismissing the Revenue’s appeal by the High Court. The Revenue has felt aggrieved by the order of the High Court dismissing their appeal in limine and has filed the present appeal by way of special leave in this Court.
9. The short question, which arises for consideration in this appeal, is whether the High Court was right in dismissing the Revenue’s appeal in limine holding that it did not involve any substantial question of law.
10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are of the view that the High Court was not justified in dismissing the appeal on the ground that the appeal did not involve any substantial question of law. We are, therefore, constrained to allow this appeal, set aside the impugned order and remand the case to the High Court for deciding the appellant’s appeal afresh on merits in accordance with law.
11. In our considered view, the following substantial questions of law do arise in this appeal filed by the Revenue (appellant herein) under Section 260-A of the Act in the High Court against the order dated 03.06.2016 passed by the ITAT in Appeal No. 1870/DEL/2010 and the same should have been framed by the High Court for deciding the appeal on merits in accordance with law:
1. Whether the ITAT was justified in holding that the notice issued by the AO under Section 148 was bad in law when admittedly the impugned notice was issued in the case where the assessment was made under Section 143(1) of the Act but not under Section 143(3) of the Act.
2. Whether the ITAT was justified in holding that the notice issued under Section 148 of the Act was bad because it was based on mere change of opinion by overlooking the fact that there was no foundation to form any such opinion.
3 When admittedly the notice in question satisfied the requirements of Section 148 of the Act as it stood, namely, that first, it contained the facts constituting the “reasons to believe” and second, it furnished the necessary details for assessing the escaped income of the assessee, whether the ITAT was still justified in declaring the notice as being bad in law without taking into consideration any of these admitted facts.
4 In case, if the notice is held proper and legal, whether the finding recorded by the ITAT on the merits of the case on each item, which is subject matter of the notice, is legally sustainable.
12. In our considered view, the aforementioned four questions framed need to be answered by the High Court on their respective merits while deciding the appeal filed by the Revenue (appellant herein) under Section 260-A of the Act.
13. We are, therefore, of the view that such order is not legally sustainable in law and hence deserves to be set aside.
14. In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside. The case is remanded to the High Court for answering the aforementioned questions on merits in accordance with law.
15. Since we have formed an opinion to remand the case to the High Court for its fresh disposal on merits, we have not expressed any opinion on the merits of the case while deciding this appeal. The High Court will, therefore, decide the appeal uninfluenced by any observation made by this Court in this order.
