ITXA365.13.doc IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 365 OF 2013 Commissioner of Income Tax Appellant Vs M/s. Johnson & Johnson Ltd. Respondent WITH INCOME TAX APPEAL NO. 379 OF 2013 Commissioner of Income Tax ... Appellant Vs M/s. Johnson & Johnson Ltd. ... Respondent WITH INCOME TAX APPEAL NO. 1301 OF 2013 Commissioner of Income Tax ... Appellant Vs M/s. Johnson & Johnson Ltd. ... Respondent Mr. Suresh Kumar for Appellants in all appeals. Mr. Subhash S. Shetty with Mr. Mandar Vaidya and Mr. Hari Iyer for Respondents. CORAM : S.C. DHARMADHIKARI & A.K. MENON, JJ. MONDAY, 16TH MARCH, 2015 P.C. : 1. This appeal challenges order dated 28th September, 2012, passed by Income Tax Appellate Tribunal, Mumbai Bench in three SRP 1/6 ::: Uploaded on - 19/03/2015 ::: Downloaded on - 31/12/2018 15:26:53 ::: ITXA365.13.doc appeals Nos.7182, 7183 and 7184 all of 2008. relevant assessment years are 1993-1994, 1994-1995 and 1995-1996. 2. grounds of appeal before Tribunal are, inter-alia, validly of reassessment proceedings and as far as merits are concerned, addition on account of sales made to Johnson & Johnson Exports Limited. 3. True it is that issue of reopening of assessment goes to root of case. facts that are necessary to appreciate arguments of Mr. Suresh Kumar are that original returns were filed by assessees for relevant assessment years on dates mentioned in table in paragraph 2 of Tribunal's order running page 72. By letter dated 28th June, 2001, assessee requested Assessing Officer to supply copy of reasons recorded for reopening assessments for respective assessment years. However, reassessments were completed and additions were made as noted by Tribunal in paragraph 2.1 of its order. assessee filed appeals before Commissioner (First Appellate Authority). He SRP 2/6 ::: Uploaded on - 19/03/2015 ::: Downloaded on - 31/12/2018 15:26:53 ::: ITXA365.13.doc partly allowed appeal of assessee. That order of First Appellate Authority was challenged before Tribunal and Tribunal, by its order dated 14th September, 2007 and 12th September, 2007, restored matter to Commissioner of Income Tax (Appeals) by setting aside his earlier order. Commissioner then heard these appeals and he held that part of paper-book before him and particularly Annexure thereof is copy of reasons recorded by Assessing Officer for reopening assessment. Commissioner did not, according to Tribunal, advert to fact that these reasons were at all supplied to assessee or not. This was ground specifically raised before Commissioner and precisely for this reason, matter was remanded to him by ITAT in earlier round. 4. In second round, Commissioner maintained his earlier findings and that is how subject appeals were instituted in Tribunal. Those were challenging order of Commissioner post remand and dated 17th September, 2008. SRP 3/6 ::: Uploaded on - 19/03/2015 ::: Downloaded on - 31/12/2018 15:26:53 ::: ITXA365.13.doc 5. In that above grounds were raised and Tribunal noted that law is that reasons ought to be supplied on demand by assessee. assessee, therefore, had no occasion to note reasons and could not object to same. Since objection to same could not be raised for want of supply of reasons, reassessment proceedings are vitiated. However, Tribunal still went ahead and found out from record basis for reopening assessment. Tribunal noted that Assessing Officer held that in earlier assessment years assessee had sold goods to its subsidiary concern at lesser price than cost of producing those goods and sold to other parties. This was vital and material fact not disclosed by assessee in return of income for concerned and subject assessment years. That is why assessment was reopened. Tribunal has recorded in paragraphs 4.1, 4.1.1 and 4.1.2 that these reasons for reopening assessment are not at all convincing. Tribunal concluded that in notice issued under section 148 of Income Tax Act, for reopening assessment, Assessing Officer stated that there was omission on part of assessee to furnish true and correct affairs of company. Apart from fact that this SRP 4/6 ::: Uploaded on - 19/03/2015 ::: Downloaded on - 31/12/2018 15:26:53 ::: ITXA365.13.doc was not enough for reopening assessment Tribunal found that if Assessing Officer had any reservation about sale price of goods sold to group concerns he should have questioned genuineness of transactions in earlier assessment years 1993- 1994 to 1995-1996. All information regarding sale by assessee was before him. Full and true facts of sale price were made available to Assessing Officer when he passed orders for earlier years. If Assessing Officer proceeded this way, then, there was no reason for reopening assessment at all. If entire material was with Assessing Officer and he could have determined issue of sale price and particularly arising out of sales to group concerns on this material then reopening was not called for at all. This is how paragraphs 4.1.1 and 4.1.2 would read. Tribunal found that on merits as well this was not case for reopening assessment. 6. These are essentially findings of fact and which could be recorded on basis of materials placed on record. This appeal, therefore, does not raise any substantial question of law. Tribunal has not merely set aside reassessment for want of notice or for SRP 5/6 ::: Uploaded on - 19/03/2015 ::: Downloaded on - 31/12/2018 15:26:53 ::: ITXA365.13.doc want of supply of reasons though notice was issued. Tribunal rested its conclusion also on merits of reasons for reopening assessments. That Tribunal found them to be not sufficient or adequate for reopening assessment is clear from above noted factual facts and to be found in paragraphs 4.1 on words. 7. In such circumstances, without determining and deciding any larger issue but keeping same open for decision in appropriate and deserving case, we dismiss these Revenue appeals. There will be no order as to costs. A.K. MENON, J. S.C. DHARMADHIKARI , J. SRP 6/6 ::: Uploaded on - 19/03/2015 ::: Downloaded on - 31/12/2018 15:26:53 ::: Commissioner of Income-tax v. Johnson & Johnson Ltd