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TMI Blog2010 (12) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Commissioner of Income-tax (Appeals) and restoring the order of the Assessing Officer, was perfectly justified - The appeal fails and the same is dismissed - T.C. (A) No. 1530 of 2008. - - - Dated:- 6-12-2010 - IBRAHIM KALIFULLA F. M., KIRUBAKARAN N. JJ Vijayaraghavan for the Appellant. K. Subramanian for the Respondent. JUDGMENT The judgment of the court was delivered by F. M. Ibrahim Kalifulla J.- The assessee has come forward with this appeal. The challenge is to the order of the Tribunal dated March 28, 2008 in I. T. A. No. 1015/Mds/06. The assessment year is 1997-98. The substan-tial questions of law raised in this appeal are as under : "(1) Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the amount received towards restrictive covenant is revenue receipt and taxable ? (2) Whether on the facts and circumstances of the case, the Tribunal failed to appreciate that the non-compete fee would be considered for taxation within the meaning of the provisions of section 28(va) only with effect from April 1, 2003 ?" 2. When this appeal was taken up for hearing, the learned counsel for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated as a question of law while entertaining this appeal, it cannot be held that on that simple ground the said question should not be allowed to be agitated by formulating a question of law. As we are convinced that the appellant was agitating such question right from the date of issue of the date of notice under section 148 of the Act, there is every justification in the appellant to now seek for framing the said issue as one of the substantial questions of law to be considered. Consequently, we formulate the said question also, which reads as under : "Whether the issuance of notice under section 148 of the Act against the appellant was valid in law ?" 6. We heard Mr. Vijayaraghavan, learned counsel for the appellant and Mr.K. Subramanian, learned senior standing counsel for the Revenue. 7. Mr. Vijayaraghavan in his submissions contended that there is nothing new that has come to the knowledge of the Assessing Officer after the assessment under section 143 of the Act and, therefore, issuance of notice under section 148 of the Act on the same set of facts on mere change of opinion was not maintainable. The learned counsel would therefore contend that when the appellant d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed senior standing counsel also contended that, on behalf of the Revenue, an appeal was preferred before the Tribunal and the facts relating to the commencement of the forex business, location and conduct of the said business by the transferor and the transferee in the same place, and the directors of both companies being the same were raised in the grounds of appeal. According to the learned counsel, the same were not controverted by the appellant before the Tribunal. The learned senior standing counsel further contended that the whole transaction was rightly construed not to be a true transaction and with the very meagre materials placed by the appellant before the assessing authority, there was every scope to hold that there was a goodwill earned, in order to hold that the receipt of Rs. 542 lakhs by way of extraordinary items (from transfer of division) was rightly brought to tax and also confirmed by the Tribunal. The learned counsel therefore contended that the order of the Tribunal does not call for interference. 11. Having heard the learned counsel for the respective parties and having perused the materials placed before us, we find that the Tribunal has analysed variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferor company and the transferee company, and the location of both offices in the same place, though specifically raised in the grounds of appeal before the Tribunal, were not controverted by the appellant. A conspectus consideration of the above factors would only go to show that the appellant did not forward a true and full disclosure of the whole of the transaction relating to the receipt of Rs. 542 lakhs. The appellant cannot therefore, be heard to say that while issuing notice under section 148 of the Act, no doubt was raised as regards the bona fides of the business prospects which earned a substantial sum of Rs. 542 lakhs in the transfer of the business relating to forex business and therefore, the respondent was not entitled to seek for reopening of the assessment. We are not therefore, inclined to countenance the plea that the reopening of the assessment under section 148 of the Act has not been validly made. 13. When we examine the merits of the claim made on behalf of the appellant, we find that the appellant's chartered accountant himself, in his letter dated March 15, 2000 disclosed that the date of commencement of forex business by the appellant was only on Janu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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