The ACIT, Circle-4, Ahmedabad V. M/s. Nova Petrochemicals Ltd., Ahmedabad

ITA 1154/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1211 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 14-06-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 29-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Depreciation; Tangible material; Difference of opinion; Reason to believe; Change of opinion
• Section: 143(3); 148; 139

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.1154/AHD/2012 / ASSTT. YEAR: 2003-2004 ACIT, CIR.4 AHMEDABAD. VS NOVA PETROCHEMICALS LTD. 369/403, MORAIYA VILLAGE SARKHEJ BAVLA HIGHWAY SANAND, AHMEDABAD 382 110. PAN : AAACN 5419 K ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI PRA SOON KABRA , CIT - DR ASSESSEE BY : MS.URVASHI SHODHAN / DATE OF HEARING : 14/06/2016 / DATE OF PRONOUNCEMENT: 04/07/2016 $%/ O R D E R THE REVENUE IS IN APPEAL BEFORE TRIBUNAL AGAINST TH E ORDER OF THE LD.CIT(A)-XI, AHMEDABAD DATED 28.03.2012 PASSED FOR THE ASSTT.YEAR 2003-04. 2. SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD.CIT (A) HAS ERRED IN QUASHING REASSESSMENT ORDER PASSED UNDER SECTION 14 3(3) R.W.S. 147 ON THE GROUND THAT THE AO WAS NOT JUSTIFIED IN REOPENI NG OF THE ASSESSMENT. ITA NO.1154/AHD/2012 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED ITS RETURN OF INCOME ON 29.11.2003 DECLARING TOTAL LOSS AT RS.1,0 3,97,752/-. THE LD.AO HAS PASSED ASSESSMENT ORDER UNDER SECTION 143 (3) ON 8.3.2006 AND DETERMINED THE TAXABLE INCOME OF THE ASSESSEE AT RS .1,85,44,720/- AS AGAINST RETURNED LOSS. THE ASSESSEE ALSO CLAIMED E XEMPTION UNDER SECTION 10A WHICH WAS DISALLOWED BY THE AO, AND SUC H DISALLOWANCE WAS WORKED OUT AT RS.2,89,42,468/-. ON APPEAL, THE LD.CIT(A) DELETED THIS DISALLOWANCE. THE AO, THEREAFTER, RECORDED RE ASONS AND ISSUED NOTICE UNDER SECTION 148 ON 22.3.2010. HE WAS OF T HE OPINION THAT ASSESSEE HAS MADE PAYMENT OF INTEREST TO A NON-RESI DENT WITHOUT DEDUCTING TDS, AND THEREFORE, IT IS NOT ELIGIBLE FO R INTEREST EXPENDITURE. 4. IT EMERGES OUT FROM THE RECORD THAT THE ASSESSEE -COMPANY IMPORTED CERTAIN MACHINERIES FROM BARMAG AG-GERMANY. THE SA ID MACHINERIES WERE FINANCED BY LANDESBANK BADEN WURTTEMBERG, (LBB W), STUTTGART, GERMANY. IT IS A GERMAN COMPANY AND RESIDENT OF GE RMANY. THE ASSESSEE WAS OF THE OPINION THAT THE LOAN WAS EXPOR T CREDIT GUARANTEE BY THE GERMAN FEDERAL GOVERNMENT AND INTEREST ON SUCH LOAN IS NOT TAXABLE IN INDIA, AND THEREFORE, NO TDS IS REQUIRED TO BE D EDUCTED BY THE ASSESSEE. SOMEHOW, THE AO WAS OF THE OPINION THAT THE TDS OUGHT TO BE DEDUCTED, THEREFORE, THE AO RECORDED REASONS TO REO PEN THE ASSESSMENT. THE REASONS RECORDED BY THE AO READ AS UNDER: REASONS FOR RE-OPENING ASSESSMENT U/S.147 OF THE I .T. ACT, 1961 REG.: NOVA PETROCHEMICALS LTD. A.Y.: 2003-04 THE ASSESSES COMPANY HAD FILED RETURN ON 29.11.2003 SHOWING LOSS AT RS. 10,39,752. THE ASSESSMENT U/S. 143(3) WAS FINALIZED ON 08.03.2006, DETERMINING TOTAL-INCOME AT RS.1,85,44,720/-. ITA NO.1154/AHD/2012 3 2. IT IS SEEN THAT THE INTEREST EXPENSES CLAIMED BY ASSESSEE INCLUDE INTEREST PAYMENT TO LBBW, AMOUNTING TO RS.63,58,012/-, WHICH HAS BEEN INCURRED AS EXPENDITURE IN FOREIGN CURRENCY, ON WHICH NO TDS HA S BEEN MADE. HENCE, THIS EXPENDITURE WAS REQUIRED TO BE DISALLOWED AS THE AS SESSEE HAS NOT COMPLIED WITH THE PROVISIONS OF SECTION 195 OF THE ACT. 3. HENCE, I HAVE REASON TO BELIEVE THAT INCOME CHAR GEABLE TO TAX HAS ESCAPED ASSESSMENT IN THE FORM OF UNDER-ASSESSMENT OF INCOM E WITHIN THE MEANING AS ENVISAGED BY SECTION 147 R.W EXPLANATION 2(C)(I) OF THE ACT. 4. HENCE NOTICE U/S 148 IS ISSUED ACCORDINGL Y. SD/- NAME : (R.H.GOHEL) PLACE: AHMEDABAD. DESIGNATION : DCIT.CIRCLE-5 , DATE: 22.03.2010 AHMEDABAD. 5. THE LD.AO HAS PASSED RE-ASSESSMENT ORDER ON 18.1 1.2010 UNDER SECTION 143(3) R.W.S. 147. HE MADE DISALLOWANCE OF RS.63,58,012/-. APART FROM THIS, HE MADE CERTAIN SMALL DISALLOWANCE S ALSO. 6. ON APPEAL, THE LD.CIT(A) HAS HELD THAT THE ASSES SEE DID NOT FAIL TO DISCLOSE ALL MATERIAL FACTS FULLY AND TRULY IN RESP ECT OF ASSESSMENT OF ITS INCOME. THEREFORE, PROVISO APPENDED TO SECTION 147 OF THE INCOME TAX WOULD DENUDE THE AO TO ISSUE NOTICE UNDER SECTION 1 48 OF THE INCOME TAX ACT UPON THE ASSESSEE. BEFORE THE TRIBUNAL, TH E LD.DR RELIED UPON THE ORDER OF THE AO. ON THE OTHER HAND, THE LD.COU NSEL FOR THE ASSESSEE RELIED UPON THE ORDERS OF THE LD.CIT(A). 7. I HAVE CONSIDERED RIVAL CONTENTIONS AND GONE THR OUGH THE RECORD CAREFULLY. I FIND THAT ON THE STRENGTH OF AUTHORIT ATIVE PRONOUNCEMENT AT THE END OF THE HONBLE HIGH COURTS AS WELL AS OF TH E HONBLE SUPREME COURT, THE ITAT IN THE CASE OF NEPTUNE TEXTILE MILL S PVT. LTD. VS. ACIT PASSED IN ITA NO.2195/AHD/2009 HAD MADE A LUCID ENUNCIATION OF THE ITA NO.1154/AHD/2012 4 SCOPE OF SECTION 147. I CANNOT DO BETTER THAN EXTR ACTING THE DISCUSSION MADE BY THE TRIBUNAL IN THIS REGARD. IT READS AS UNDER: 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THE REOP ENING OF THE ASSESSMENT IS BAD IN LAW. FOR THE SAKE OF CONVENIEN CE WE REPRODUCE SECTION 147 AND PROVISO THERETO:- 147. IF THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR, HE MAY SUBJECT TO THE PROVISIONS O F SECTIONS 148 TO 153 ASSESS OR RE-ASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSME NT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURS E OF THE PROCEEDINGS UNDER THIS SECTION, OR RECOMPUTED THE L OSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE, AS T HE CASE MAY BE, FOR THE ASSESSMENT YEAR CONCERNED (HEREAFTER IN THIS SECTION AND IN SECTIONS 148 TO 153 REFERRED TO AS THE RELEV ANT ASSESSMENT YEAR): PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE R ELEVANT ASSESSMENT YEAR, NO ACTION SHALL BE TAKEN UNDER THI S SECTION AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVA NT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAP ED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF TH E FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SEC TION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB-SECTION (1) O F SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL M ATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, FOR THAT ASSESSMENT Y EAR; [PROVIDED FURTHER THAT THE AO MAY ASSESS OR REASSES S SUCH INCOME OTHER THAN THE INCOME INVOLVING MATTERS WHICH ARE T HE SUBJECT MATTERS OF ANY APPEAL, REFERENCE OR REVISION WHICH IS CHARGEABLE TO TAX AND HAS ESCAPED ASSESSMENT]. THE REQUIREMENTS OF THE SECTION ARE AS UNDER :- (1) THE AO HAS REASON TO BELIEVE; (2) THAT AN INCOME CHARGEABLE TO TAX HAS ESCAPED AS SESSMENT; (3) IF FOUR YEARS HAVE EXPIRED FROM THE END OF THE RELEVANT ASST. YEAR THEN SUCH ESCAPEMENT WAS DUE TO FAILURE ON THE PART OF THE ASSESSEE- (I) TO FILE A RETURN U/S 139; ITA NO.1154/AHD/2012 5 (II) TO FILE A RETURN IN RESPONSE TO NOTICE U/S 142 (1) OR SECTION 148; (III) TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACT S NECESSARY FOR THE ASSESSMENT. ALL THESE ASPECTS MUST COME IN THE REASONINGS RECOR DED BY THE AO. THE REASONS RECORDED BY THE AO SHOULD REFLECT (I) ASSESSEE IN RESPECT OF WHOM ASSESSMENT IS SOUGHT TO BE REOPENED; (II) ASSESSMENT YEAR AS SOUGHT TO BE REOPENED; (III) AMOUNT OF INCOME WHICH HAS ESCAPED ASSESSMENT; (IV) HOW THE ORIGINAL ASSESSMENT HAS BEEN DONE WHETHER U /S 143(1) OR U/S 143(3) OR SEC.147/148; (V) WHAT IS THE REASON OF ESCAPEMENT OF ASSESSMENT; (VI) WHETHER THERE IS ANY FAILURE AS MENTIONED IN THE PR OVISO IF ASSESSMENT IS SOUGHT TO BE REOPENED AFTER FOUR Y EARS FROM THE END OF THE RELEVANT ASST. YEAR; (VII) IN PARTICULAR, WHETHER THERE IS ANY THE FAILURE OF THE ASSESSEE TO DISCLOSE MATERIAL FACTS FULLY AND TRULY NECESSARY FOR THE ASSESSMENT FOR THAT ASSESSMENT YE AR. (VIII) IF ASSESSMENT IS DONE U/S 143(1), THEN WHETHER THE PROVISION OF SECTION 149 ARE APPLICABLE. 8. IF REASONS RECORDED DID NOT REFLECT THESE INGRE DIENTS THEN REOPENING CANNOT BE SUSTAINED. ON THE ASPECT OF NEC ESSITY TO MENTION THE FAILURE OF THE ASSESSEE TO DISCLOSE TRU LY AND FULLY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT HON. ALLAHA BAD HIGH COURT IN CIT VS. PRADESHIYA INDUSTRIAL AND INVESTME NT CORPORATION OF UTTAR PRADESH LTD (2011) 332 ITR 324(ALL) HAS OB SERVED AS UNDER :- ADMITTEDLY, NOTICE UNDER SECTION 148 OF THE ACT WA S ISSUED AFTER THE EXPIRY OF FOUR YEARS. THE NOTICE UNDER THE PROV ISO OF SECTION 147 OF THE ACT CAN BE ISSUED AFTER THE EXPIRY OF FO UR YEARS ONLY IN CASE WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASS ESSMENT BY REASON OF THE FAILURE ON THE PART OF THE ASSESSES T O MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB- SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DIS CLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSME NT FOR THAT ASSESSMENT YEAR. FROM THE PERUSAL OF THE REASON REC ORDED IT IS APPARENT THAT NO CASE HAS BEEN MADE OUT THAT THE AS SESSES HAD FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FAC TS NECESSARY FOR HIS ASSESSMENT AND NO OBSERVATION HAS BEEN MADE IN THIS REGARD, ON THE BASIS OF THE SAME MATERIAL WHICH WAS AVAILABLE ON RECORD, THE ASSESSING AUTHORITY WAS OF THE VIEW THAT THE DEDUCT ION HAD BEEN ITA NO.1154/AHD/2012 6 WRONGLY ALLOWED UNDER SECTION 36(1)(VIII) OF THE AC T. THE TRIBUNAL OBSERVED THAT THE ASSESSEE HAD FURNISHED THE REQUIS ITE DETAILS IN RESPECT OF LEASING INCOME AND UPFRONT FEE AS RECEIV ED IN THE ASSESSMENT YEAR UNDER CONSIDERATION AND THE SAME WA S DULY DISCLOSED IN THE AUDITED PROFIT AND LOSS ACCOUNT, A S IS EVIDENT FROM PAGES 4 AND 5 OF THE PAPER BOOK READ WITH PAGE 23 O F THE PAPER BOOK AND ALSO COMPUTATION OF INCOME FILED ALONG WIT H RETURN, A COPY OF WHICH IS PLACED AT PAGES 33 TO 35 OF THE PA PER BOOK. THIS FINDING OF THE TRIBUNAL HAS NOT BEEN DISPUTED BY RA ISING ANY QUESTION AND DURING THE COURSE OF THE ARGUMENT BY T HE LEARNED COUNSEL FOR THE APPELLANT. THEREFORE, WE ARE OF THE VIEW THAT ON THE FACTS AND CIRCUMSTANCES, NO SUBSTANTIAL QUESTIO N OF LAW ARISES FOR CONSIDERATION BY THIS COURT. LEARNED COUNSEL FOR THE APPELLANT CITED A DECISION OF THE BOMBAY HIGH COURT IN THE EASE OF DR. AMIN'S PATHOLOGY LABO RATORY V. P. M. PROSAD, JOINT CIT [2001] 252 ITR 673 ; [2002] 172 C TR 696. WE HAVE GONE THROUGH THE DECISION OF THE BOMBAY HIGH C OURT. WE ARE OF THE VIEW THAT THE SAID DECISION IS NOT APPLI CABLE TO THE FACTS OF THE PRESENT CASE. IN THE SAID CASE, THE BOMBAY H IGH COURT HAS HELD THAT THE ASSESSING AUTHORITY HAS OVERLOOKED TH E DISPUTED ITEM WHICH HE HAS NOTICED SUBSEQUENTLY AND AT THE T IME OF PASSING THE ORIGINAL ORDER OF ASSESSMENT, HE COULD NOT BE SAID TO HAVE OPINED ON THE ABOVE ITEM. THEREFORE, THERE WAS NO CHANGE OF OPINION. WHILE IN THE PRESENT CASE, COMPLETE DET AILS WERE FURNISHED ALONG WITH THE RETURN AND DURING THE COUR SE OF THE ASSESSMENT PROCEEDINGS AND AFTER AN APPLICATION OF MIND, THE DEDUCTION UNDER SECTION 36(1)(VIII) OF THE ACT WAS ALLOWED. IN THE REASON RECORDED NO CASE HAS BEEN MADE OUT THAT THER E WAS FAILURE TO DISCLOSE ANY MATERIAL PARTICULAR ON THE PART OF THE ASSESSEE. THEREFORE, LIMITATION BEYOND THE PERIOD OF FOUR YEA RS WAS NOT AVAILABLE TO THE ASSESSING AUTHORITY. ADMITTEDLY, T HE NOTICE WAS ISSUED AFTER FOUR YEARS, THEREFORE, THE PROCEEDING WAS BARRED BY TIME AND THE TRIBUNAL HAS RIGHTLY HELD SO. FOR THE REASONS STATED ABOVE, THE APPEAL FAILS AND IS DISMISSED. HON. BOMBAY HIGH COURT, IN THE CASE OF BHAVESH DEVE LOPERS VS. A.O. & OTHERS (2010) 329 ITR 249 (BOM), NOTED THAT THE RECORDED REASONS DID NOT SHOW FINDING THAT THERE WAS A FAILU RE TO DISCLOSE NECESSARY FACTS. IN THAT CASE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB(10) FOR RS.3.85 CRORES WHICH WAS ALLOWED BY TH E AO VIDE ORDER U/S 143(3) AND ASSESSMENT WAS SOUGHT TO BE RE OPENED AFTER EXPIRY OF FOUR YEARS ON THE GROUND THAT THE C LAIM OF DEDUCTION U/S 80IB(10) INCLUDED INELIGIBLE ITEMS OF OTHER INCOME SUCH AS SOCIETY DEPOSITS, STREET PARKING CHARGES, S UNDRY BALANCES, ITA NO.1154/AHD/2012 7 ETC. HON. BOMBAY HIGH COURT IN THE CASE OF BHAVESH DEVELOPERS VS. A.O. & OTHERS (SUPRA) OBSERVED AS UNDER :- HELD, ALLOWING THE PETITION, THAT EX FACIE, THE RE ASONS WHICH HAD BEEN DISCLOSED TO THE ASSESSEE WOULD SHOW THAT THE INFERENCE THAT THE INCOME HAD ESCAPED ASSESSMENT WAS BASED ON THE DISCLOSURE MADE BY THE ASSESSEE ITSELF. THE REASONS SHOWED THA T THE FINDING WAS BASED ON THE DETAILS FILED BY THE ASSESSEE AND FROM THE PROFITS AND LOSS ACCOUNT. THEREFORE, IT WAS IMPOSSI BLE FOR THE ASSESSING OFFICER TO EVEN DRAW THE INFERENCE THAT T HERE WAS A FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FUL LY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ITS ASSESSMENT FOR ASS ESSMENT YEAR 2002-03. SIGNIFICANTLY, THE REASONS THAT HAD BEEN D ISCLOSED TO THE ASSESSEE DID NOT CONTAIN A FINDING TO THE EFFECT TH AT THERE WAS A FAILURE TO FULLY AND TRULY DISCLOSE ALL NECESSARY F ACTS, NECESSARY FOR THE PURPOSE OF ASSESSMENT. IN THESE CIRCUMSTANCES, THE CONDITION PRECEDENT TO A VALID EXERCISE OF THE POWER TO REOPE N THE ASSESSMENT, AFTER A LAPSE OF FOUR YEARS FROM THE RE LEVANT ASSESSMENT YEAR, WAS ABSENT IN THE PRESENT CASE. TH E NOTICE WAS NOT VALID AND WAS LIABLE TO BE QUASHED. HON. SUPREME COURT IN THE CASE OF ITO VS. LAKHMANI MEWAL DAS (1976) 103 ITR 437 (SC) HELD THAT WHERE ASSESSMENT IS SOUGHT TO BE REOPENED AFTER EXPIRY OF FOUR YEARS REASONS FOR BELIEF MUST SHOW LIVE LINK BETWEEN THE MATERIAL AND BELIEF. THE RE SHOULD BE A RATIONAL CONNECTION OR RELEVANT BEARING ON THE FORM ATION OF THE BELIEF. RATIONAL CONNECTION POSTULATES THAT THERE M UST BE A DIRECT NEXUS OR LIVE LINK BETWEEN THE MATERIAL COMING TO T HE NOTICE OF THE ITO AND THE FORMATION OF THE BELIEF THAT THERE IS A N ESCAPEMENT OF INCOME OF THE ASSESSEE FOR THAT PARTICULAR YEAR BEC AUSE OF HIS FAILURE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FA CTS. EVEN THOUGH COURT CANNOT GO INTO SUFFICIENCY OR ADEQUACY OF THE MATERIAL AND SUBSTITUTE ITS OWN OPINION FOR THAT OF THE ITO ON T HE POINT AS TO WHETHER ACTION SHOULD BE INITIATED FOR REOPENING OF THE ASSESSMENT, BUT AT THE SAME TIME WE HAVE TO BEAR IN MIND THAT IT IS NOT ANY AND EVERY MATERIAL, HOWSOEVER VAGUE AND INDEFINITE OR DISTANT, REMOTE AND FAR FETCHED, WHICH WOULD WARRAN T THE FORMATION OF THE BELIEF RELATING TO ESCAPEMENT OF T HE INCOME OF THE ASSESSEE FROM ASSESSMENT. HON. SUPREME COURT IN THE CASE OF CIT VS. KELVINATO R INDIA LTD. (2010) 320 ITR 561(SC), WHILE DISMISSING THE LEGISL ATION OF SECTION 147, HELD THAT EXPRESSION REASONS TO BELIE VE NEEDS TO BE GIVEN SCHEMATIC INTERPRETATION IN ORDER TO ENSURE A GAINST AN ARBITRARY EXERCISE OF POWER BY THE AO. THE POWER TO REOPEN THE ASSESSMENT IS NOT AKIN TO POWER TO REVIEW THE ASSES SMENT AND ITA NO.1154/AHD/2012 8 MERE CHANGE OF OPINION WOULD NOT JUSTIFY THE COURSE OF ACTION U/S 147. UNLESS THE AO HAS TANGIBLE MATERIAL FACT TO RE OPEN THE ASSESSMENT, POWER U/S 147 CANNOT BE VALIDLY EXERCIS ED. 9. IN THE PRESENT CASE THERE IS A CLEAR CASE OF CHA NGE OF OPINION. EVEN THOUGH RELIANCE HAS BEEN PLACED ON THE DECISIO N OF HON. SUPREME COURT IN BALLIMAL NAVALKISHORE AND OTHERS V S. CIT (SUPRA), THAT JUDGMENT EXISTED AT THE TIME WHEN THE AO TOOK THE DECISION U/S 143(3) AND HELD THE EXPENDITURE AS CUR RENT REPAIRS ALLOWABLE IN THE PROFIT AND LOSS ACCOUNT UNDER SECT ION 143(3). WITHOUT THERE BEING MATERIAL ON RECORD AND AN ALLEG ATION OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE ANY MATERIA L WHICH COULD HAVE MADE THE AO TO BELIEVE THAT EXPENDITURE SO INC URRED WAS CAPITAL IN NATURE, NEW VIEW SO TAKEN FOR REOPENING OF ASSESSMENT WOULD BE ONLY A CHANGE OF OPINION. EARLIER SAME EXP ENDITURE WAS HELD AS REVENUE IN NATURE AND NOW CONSIDERED AS CAP ITAL WOULD BE AKIN TO REVIEWING HIS OWN DECISION ON THE SUBJECT. HON. BOMBAY HIGH COURT IN THE CASE OF ICICI PRUDENCIAL LIFE INS URANCE CO. LTD. VS. ACIT (2010) 325 ITR 471 (BOM) ALSO HELD THAT WH EN THERE IS NO MATERIAL ON RECORD AND WITHOUT THERE BEING ANY A LLEGATION OF FAILURE OF THE ASSESSEE TO DISCLOSE SUCH MATERIAL F ACT, ASSESSMENT CANNOT BE REOPENED AFTER FOUR YEARS. HON. GUJARAT H IGH COURT IN INDUCTO ISPAT ALLOYS LTD. VS. ACIT (2010) 320 ITR 4 58 (GUJ) AND NIKHIL K. KOTAK VS. MAHESH KUMAR (2009) 319 ITR 445 (GUJ) ALSO HELD THAT WHERE THE PERIOD OF FOUR YEARS HAS EXPIRE D FROM THE END OF RELEVANT ASST. YEAR THE PROVISO TO SECTION 147 W OULD COME INTO PLAY. IT STIPULATES THREE CONDITIONS AND ONE OF THO SE CONDITIONS IS SHOWING OMISSION OR FAILURE ON THE PART OF THE ASSE SSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR TH E ASSESSMENT. WHEN WE GO THROUGH THE REASONS RECORDED AND AS MENT IONED ABOVE WE DO NOT FIND ANY REFERENCE TO SUCH FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE ANY MATERIAL FACT NECESSAR Y FOR ASSESSMENT AND IN FACT NARRATION GIVEN IN THE REASO NS DO NOT SHOW ANY SUCH FAILURE WHICH COULD BE INFERRED EVEN IF NO T SO MENTIONED SPECIFICALLY IN THE REASONS. IN OUR CONSIDERED VIEW WHEN NEITHER THERE IS ANY ALLEGATION OF FAILURE NOR THE AO HAS B ROUGHT ANY MATERIAL ON RECORD TO SUGGEST ESCAPEMENT OF INCOME THEN IT IS ONLY A CHANGE OF OPINION AND THEREFORE ASSESSMENT C ANNOT BE REOPENED AFTER EXPIRY OF FOUR YEARS. 8. IN THE LIGHT OF THE ABOVE, IF I EXAMINE THE FACT S OF THE PRESENT CASE, THEN, IT WOULD REVEAL THAT THE AO HAD ISSUED A DETA ILED QUESTIONNAIRE WHICH WAS DULY REPLIED BY THE ASSESSEE. IT HAS FUR NISHED STATUTORY AUDIT ACCOUNTS UNDER THE COMPANIES ACT AS WELL AS AUDIT R EPORT IN FORM ITA NO.1154/AHD/2012 9 NO.3CA AND 3CD ALONG WITH RETURN. THE ASSESSEE HAS SUBMITTED ALL OTHER DETAILS CALLED FOR BY THE AO. IN THE REASONS RECORDED BY THE AO TO REOPEN THE ASSESSMENT, NOWHERE IT HAS BEEN ALLEGED THAT THE ASSESSEE HAS FAILED TO DISCLOSE ANY PARTICULAR ITEM FULLY AND TR ULY. THE PROVISO APPENDED TO SECTION 147 PUTS FETTER ON THE POWER OF THE AO TO REOPEN THE ASSESSMENT IN THE CASE WHERE ORIGINALLY THE ASSESSM ENT WAS PASSED UNDER SECTION 143(3) AND FOUR YEARS HAVE EXPIRED. IN SUC H CASES NO NOTICE UNDER SECTION 148 CAN BE ISSUED UNLESS IT IS ESTABL ISHED THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT ON ACCOUNT OF FAILURE OF THE ASSESSEE TO DISCLOSE ALL MATERIAL FACTS FULLY AND T RULY. NO SUCH ALLEGATION HAS BEEN LEVELED BY THE AO. THEREFORE, THE LD.CIT( A) HAS RIGHTLY QUASHED THE RE-ASSESSMENT ORDER. IN VIEW OF THIS, I DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE. IT IS DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 4 TH JULY, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER