IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1197 OF 2015 Commissioner of Income Tax 1 Appellant Vs. Blue Star Ltd. Respondent Mr. Suresh Kumar for Appellant. Mr. Niraj Shetty i/by Mr. Atul K. Jasani for Respondent. CORAM : A.S. OKA & A.K. MENON, JJ. DATE : 4th DECEMBER, 2017 P.C. 1 Heard learned counsel appearing for appellant revenue. He has pressed into service following substantial questions of law : (1) Whether on facts and in circumstances of case and in law, ITAT was justified in annulling assessment proceedings where assessee has never objected during course of assessment proceedings regarding validity of notice u/s.148; and in light of affidavit filed by then Assessing Officer before ITAT dated 24 03 2014 in this regard? (ii) Whether on facts and in circumstances of case and in law, ITAT has failed to consider fact 1 of 4 ::: Uploaded on - 22/12/2017 ::: Downloaded on - 25/12/2017 10:43:33 ::: itxa 1197.15.odt that A.O. possessed information with him and recorded reasons for reopening on 30 03 2010 but same was inadvertently typed as 31 03 2010 which is as stated by A.O. in his affidavit dated 24 03 2014 filed by erstwhile A.O. and it was just typographical error. 2 respondent assessee preferred Appeal against order passed by Assessing Officer under Section 143(3) read with Section 147 of Income Tax Act, 1961 (for short said Act ). Before CIT (Appeals), specific contention was raised that Assessing Officer issued notice under Section 148 on 30 th March, 2010 whereas he recorded reasons for reopening assessment on 31 st March, 2010. CIT (A) held that recording of reasons was sine qua non for issuing notice under Section 148 of said Act. Therefore, first Appellate Authority proceeded to set aside re assessment made by Assessing Officer. Being aggrieved by order of first Appellate Authority, appellant revenue preferred Appeal before Income Tax Appellate Tribunal, B Branch at Mumbai. Before Appellate Tribunal on 24th March, 2014 affidavit was filed by Assessing Officer in which he contended that though he had dictated reasons on 30th March, 2010, he signed same on 31 st March, 2010. Appellate Tribunal proceeded to dismiss Appeal filed by Appellant revenue. 2 of 4 ::: Uploaded on - 22/12/2017 ::: Downloaded on - 25/12/2017 10:43:33 ::: itxa 1197.15.odt 3 learned counsel appearing for appellant relied upon affidavit dated 24th March, 2014 filed by Assessing Officer which records that on 30th March, 2010 he dictated reasons. affidavit shows that reasons/ grounds were recorded before notice was issued under Section 148 of said Act on 30 th March, 2010. He submitted that this was sufficient compliance with Sub Section (2) of Section 148 of said Act. He would, therefore, submit that proceedings were not initiated on basis of notice dated 30th March, 2010. 4 We have given careful consideration to submissions. Appeal against order of Assessing Officer was preferred by respondent assessee on 25th January, 2011. During pendency of said Appeal which was decided on 20th June, 2011 no such affidavit was filed by Assessing Officer. On 8th September, 2011 appellant assessee preferred Appeal before Appellate Tribunal. From impugned judgment, it appears that Appeal was heard 3 years thereafter on 19th February, 2015. affidavit relied upon by learned counsel appearing for appellant was belatedly filed on 24 th March, 2014 which is nearly 2 years after Appeal was preferred before Appellate Tribunal. Thus, what was stated in affidavit was clearly afterthought. 3 of 4 ::: Uploaded on - 22/12/2017 ::: Downloaded on - 25/12/2017 10:43:33 ::: itxa 1197.15.odt 5 Nevertheless affidavit has been taken into consideration by Appellate Tribunal. Appellate Tribunal noted that even assuming that Assessing Officer had dictated reasons on 30 th March, 2010, in fact reasons were signed by him admittedly on 31 st March, 2010. Appellate Tribunal, in our view, rightly held that process of recording reasons as per mandate of Sub Section (2) of Section 148 of said Act was completed when Assessing Officer signed reasons on 31st March, 2010. Thus, even before recording reasons under his signature, notice under Section 148 was already issued on 30th March, 2010. Therefore, Appellate Tribunal was right in holding that even if case made out in affidavit belatedly filed by Assessing Officer is correct, it will not advance case of appellant revenue any further. No substantial question of law arises. Appeal is dismissed. There will be no order as to costs. (A.K. MENON, J) (A.S. OKA, J) 4 of 4 CommissionerofIncome-tax1 v. BlueStarLtd