Indian Wire and Steel Products , Kolkata V. A.C.I.T.,Circle-44, Kolkata

ITA 1160/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9123 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-12-2019
• Assessment Year: misc
• Appeal Filed On: 15-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Keywords: Reopening of assessment; Tangible material; Difference of opinion; Accommodation entries; Reason to believe; Change of opinion; TDS
• Section: 143(3); 143(1); 250; 147; 27; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER) ITA NO. 1160/KOL/2019 ASSESSMENT YEAR: 2010-11 INDIAN WIRE & STEEL PRODUCTS....................................................................APPELLANT 2 ND FLOOR 113A, MANOHAR DAS KATRA KOLKATA 700 007 [PAN : AAAFI 7079 M] VS. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-44, KOLKATA.....RESPONDENT APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI JAYANTA KHANRA, JCIT SR. D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 10 TH , 2019 DATE OF PRONOUNCING THE ORDER : JANUARY 10 TH , 2020 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 13, KOLKATA, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 26/02/2019, FOR THE ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE FILED THE FOLLOWING REVISED GROUNDS OF APPEAL:- 1A) FOR THAT THE LD. CIT(A) OUGHT TO HAVE QUASHED THE RE-ASSESSMENT PROCEEDINGS SINCE THE SAME WAS INITIATED WITHOUT RECORDING PROPER REASONS TO BELIEF. (B) FOR THAT THE LD. CIT(A) OUGHT TO HAVE HELD THE ENTIRE RE-ASSESSMENT PROCEEDINGS AS INVALID SINCE THE SAME WAS INITIATED ON MERE CHANGE OF OPINION ON THE SAME SET OF FACTS. (C) FOR THAT THE LD. CIT(A) OUGHT TO HAVE QUASHED THE RE-ASSESSMENT PROCEEDINGS INASMUCH AS THERE WAS LACK OF PROPER REASONS TO BELIEF AND / OR APPLICABILITY OF INDEPENDENT MIND ON THE PART OF THE A.O. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE DISALLOWANCE OF INTEREST ON UNSECURED LOAN OF RS. 5,40,000/- BY WRONGLY TREATING THE LOAN AS BOGUS. 3. THE BASIC CHALLENGE OF THE ASSESSEE IS ON THE ISSUE OF REOPENING OF ASSESSMENT U/S 147 OF THE ACT. 4. HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, I HOLD AS FOLLOWS:- 5. THE REASONS RECORDED FOR REOPENING ARE EXTRACTED FOR READY REFERENCE:- THIS OFFICER IS IN RECEIPT OF INFORMATION FROM THE ASSISTANT COMMISSIONER OF INCOME TAX (CENTRAL)- 2(1), KOLKATA ON 29.03.2017 ON THE SUBJECT MATTER INFOR MATION WITH RESPECT TO ACCOMMODATION ENTRY PROVIDED BY ANAND SHARMA & GROUP VIDE LETTER NO. ACIT/CC DATED 27.03.2017. THIS OFFICE HAS RECEIVED ON 29.03.2017. ON GOING THROUGH THE SAID INFORMATION, IT IS SEEN THAT OPERATION U/S 132(1) OF THE INCOME TAX, 1961 WAS CARRIED OUT IN THE CASE OF ANAND KUMAR SHARMA, WELL KNOWN ENTRY OPERATORS AND HIS OTHER RELATED ENTITIES ON 02.07.2013. IN THE STATEMENT, MR. ANAND KUMAR SINHA HAS ACCEPTED THAT HE IS AN E NTRY OPERATOR AND HE PROVIDED VARIOUS BOGUS ACCOMMODATION ENTRIES TO THE VARIOUS BENEFICIARIES FOR COMMISSION THROUGH HIS SHELL COMPANIES. MR. ANAND KUMAR SHARMA ALSO ACCEPTED THAT ALL THE DIRECTORS OF THESE ENTITIES/COMPANIES ARE DUMMY DIRECTORS APPOINTED BY HIM. MR. ANAND KUMAR SHARMA ALSO ACCEPTED THAT HE CONTROLS THE ENTIRE ACTIVITIES/AFFAIRS OF THESE ENTITIES/ COMPANIES AND THESE ENTITIES/ COMPANIES WERE INCORPORATED FOR PROVIDING BOGUS ACCOMMODATION ENTRIES ONLY. MR. ANAND KUMAR SHARMA ALSO ACCEPTED T BOGUS ENTITIES, WHICH ARE OPERATED BY HIM FOR PROVIDING BOGUS ACCOMMODATION ENTRIES TO THE VARIOUS BENEFICIARIES FOR COMMISSION. FROM THE DETAILS PROVIDED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CC 2(1) , KOLKATA, IT HAS BEEN GATHER THAT INDIAN WIRE & STEEL PRODUCT, PAN:AAAFI7079M, HAS TAKEN THE BOGUS ACCOMMODATION ENTRIES THROUGH DIFFERENT TRANSACTION OF THE BOGUS ENTITIES/COMPANIES MANAGED, CONTROLLED AND OPERATED BY MR. ANAND KUMAR SHARMA AND DETAILS O F INTEREST PAID & TDS TO THE BOGUS COMPANY ARE GIVEN BELOW: IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX FOR THE A.Y. 2010- 11 HAS ESCAPED ASSESSMENT TO THE EXTENT OF BOGUS ACCOMMODATION ENTRIES OF RS.5,40,000/ GROUP, AS MENTIONED ABOVE THE INCOME TAX ACT, 1961. SI. NO. NAME OF COMPANY 1 SUMIT IRON 2 VISHAKHA TECHNOLOGIES 3. MORAN PLANT & MACHINERY 4. DHIRENDRA MERCHANTS 2 THIS OFFICER IS IN RECEIPT OF INFORMATION FROM THE ASSISTANT COMMISSIONER OF 2(1), KOLKATA ON 29.03.2017 ON THE SUBJECT MATTER MATION WITH RESPECT TO ACCOMMODATION ENTRY PROVIDED BY ANAND SHARMA VIDE LETTER NO. ACIT/CC - 2(1)/SHARING INFORMATION/KOL/2016 DATED 27.03.2017. THIS OFFICE HAS RECEIVED ON 29.03.2017. ON GOING THROUGH THE SAID INFORMATION, IT IS SEEN THAT A SEARCH & SEIZURE OPERATION U/S 132(1) OF THE INCOME TAX, 1961 WAS CARRIED OUT IN THE CASE OF ANAND KUMAR SHARMA, WELL KNOWN ENTRY OPERATORS AND HIS OTHER RELATED ENTITIES ON 02.07.2013. IN THE STATEMENT, MR. ANAND KUMAR SINHA HAS ACCEPTED THAT HE IS AN NTRY OPERATOR AND HE PROVIDED VARIOUS BOGUS ACCOMMODATION ENTRIES TO THE VARIOUS BENEFICIARIES FOR COMMISSION THROUGH HIS SHELL COMPANIES. MR. ANAND KUMAR SHARMA ALSO ACCEPTED THAT ALL THE DIRECTORS OF THESE ENTITIES/COMPANIES ARE DUMMY DIRECTORS BY HIM. MR. ANAND KUMAR SHARMA ALSO ACCEPTED THAT HE CONTROLS THE ENTIRE ACTIVITIES/AFFAIRS OF THESE ENTITIES/ COMPANIES AND THESE ENTITIES/ COMPANIES WERE INCORPORATED FOR PROVIDING BOGUS ACCOMMODATION ENTRIES ONLY. MR. ANAND KUMAR SHARMA ALSO ACCEPTED T HAT HE CONTROLLED, MANAGE AND OPERATED ALL THESE BOGUS ENTITIES, WHICH ARE OPERATED BY HIM FOR PROVIDING BOGUS ACCOMMODATION ENTRIES TO THE VARIOUS BENEFICIARIES FOR COMMISSION. FROM THE DETAILS PROVIDED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CC , KOLKATA, IT HAS BEEN GATHER THAT INDIAN WIRE & STEEL PRODUCT, PAN:AAAFI7079M, HAS TAKEN THE BOGUS ACCOMMODATION ENTRIES THROUGH DIFFERENT TRANSACTION OF THE BOGUS ENTITIES/COMPANIES MANAGED, CONTROLLED AND OPERATED BY MR. ANAND KUMAR F INTEREST PAID & TDS TO THE BOGUS COMPANY ARE GIVEN BELOW: IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX 11 HAS ESCAPED ASSESSMENT TO THE EXTENT OF BOGUS ACCOMMODATION RS.5,40,000/ - MADE THROUGH ENTRY PROVIDED BY ANAND SHARMA & GROUP, AS MENTIONED ABOVE W ITHIN THE MEANING OF THE PROVISIONS OF SECTION 147 OF THE INCOME TAX ACT, 1961. TAN NAME OF THE DEDUCTOR AMOUNTS CALI01192C INDIAN WIRE & STEEL PRODUCT 1,20,000/- CALI01192C INDIAN WIRE & STEEL PRODUCT 1,80,000/- CALI01192C INDIAN WIRE & STEEL PRODUCT 1,20,000/- CALI01192C INDIAN WIRE & STEEL PRODUCT 1,20,000/- TOTAL RS.5,40,000/ ITA NO. 1160/KOL/2019 ASSESSMENT YEAR: 2010-11 INDIAN WIRE & STEEL PRODUCTS THIS OFFICER IS IN RECEIPT OF INFORMATION FROM THE ASSISTANT COMMISSIONER OF 2(1), KOLKATA ON 29.03.2017 ON THE SUBJECT MATTER SHARING OF MATION WITH RESPECT TO ACCOMMODATION ENTRY PROVIDED BY ANAND SHARMA 2(1)/SHARING INFORMATION/KOL/2016 -17/3335 A SEARCH & SEIZURE OPERATION U/S 132(1) OF THE INCOME TAX, 1961 WAS CARRIED OUT IN THE CASE OF ANAND KUMAR SHARMA, WELL KNOWN ENTRY OPERATORS AND HIS OTHER RELATED ENTITIES ON 02.07.2013. IN THE STATEMENT, MR. ANAND KUMAR SINHA HAS ACCEPTED THAT HE IS AN NTRY OPERATOR AND HE PROVIDED VARIOUS BOGUS ACCOMMODATION ENTRIES TO THE VARIOUS BENEFICIARIES FOR COMMISSION THROUGH HIS SHELL COMPANIES. MR. ANAND KUMAR SHARMA ALSO ACCEPTED THAT ALL THE DIRECTORS OF THESE ENTITIES/COMPANIES ARE DUMMY DIRECTORS BY HIM. MR. ANAND KUMAR SHARMA ALSO ACCEPTED THAT HE CONTROLS THE ENTIRE ACTIVITIES/AFFAIRS OF THESE ENTITIES/ COMPANIES AND THESE ENTITIES/ COMPANIES WERE INCORPORATED FOR PROVIDING BOGUS ACCOMMODATION ENTRIES ONLY. MR. ANAND HAT HE CONTROLLED, MANAGE AND OPERATED ALL THESE BOGUS ENTITIES, WHICH ARE OPERATED BY HIM FOR PROVIDING BOGUS ACCOMMODATION FROM THE DETAILS PROVIDED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CC - , KOLKATA, IT HAS BEEN GATHER THAT INDIAN WIRE & STEEL PRODUCT, PAN:AAAFI7079M, HAS TAKEN THE BOGUS ACCOMMODATION ENTRIES THROUGH DIFFERENT TRANSACTION OF THE BOGUS ENTITIES/COMPANIES MANAGED, CONTROLLED AND OPERATED BY MR. ANAND KUMAR F INTEREST PAID & TDS TO THE BOGUS COMPANY ARE GIVEN BELOW: - IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX 11 HAS ESCAPED ASSESSMENT TO THE EXTENT OF BOGUS ACCOMMODATION ENTRY PROVIDED BY ANAND SHARMA & ITHIN THE MEANING OF THE PROVISIONS OF SECTION 147 OF DATE OF PAYMENT/CREDIT 31.03.2010 31.03.2010 31.03.2010 31.03.2010 TOTAL RS.5,40,000/ - 6. THE ORIGINAL ASSESSMENT IN THIS CASE HAS BEEN COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DT. 04/05/2012. THE REOPENING IS BEYOND A PERIOD OF FOUR YEARS FROM THE END OF T HE ASSESSMENT YEAR AND HENCE THE PROVISO TO SECTION 147 OF THE ACT, IS APPLICABLE. 7. A PERUSAL OF THE REASONS FOR REOPENING DEMONSTRATES THAT THERE IS NO ALLEGATION MADE BY THE ASSESSING OFFICER THAT THERE WAS ANY FAILURE ON THE PART OF THE ASSESSEE TO DI SCLOSE TRULY AND FULLY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT. 8. THIS BENCH OF THE TRIBUNAL, WHILE ADJUDICATING A SIMILAR ISSUE IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2019, HAS HELD AS FOLLOWS:- 5. WE FIND THAT THE A BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. BEEKAY STEEL INDUSTRIES LTD. VS. DCIT CC- XXX, KOLKATA, IN I.T.A. NO. 105/KOL/2015, ORDER DT. 31/05/2017, HELD AS FOLLOWS: 4.4. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF 370 ITR 135 (BOM.), HAS HELD AS FOLLOWS: 10. AS STATED ABOVE, THE REASONS SUPPLIED TO THE PETITIONER DO NOT DISCLOSE THAT THERE WAS ANY FAILURE ON THE PART OF THE PETITIONER TO PROVIDE ALL THE MATERI COULD NOT HAVE BEEN TAKEN UP AGAINST THE PETITIONER AT THE TIME OF DISPOSING OF THE OBJECTIONS. ONCE THIS WAS NOT THE BASIS FOR ISSUANCE OF NOTICE FOR REASSESSMENT, IT CANNOT BE HELD AGAINST THE PETITIONER THA PETITIONER HAD FAILED TO MAKE A TRUE AND FULL DISCLOSURE. IT WILL HAVE TO BE HELD THAT THE PETITIONER DID NOT FAIL TO MAKE FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS. THE JURISDICTIONAL REQUIREMENT FOR CARRYING OUT THE REASSESSMENT, AFTER THE EXP 4.5. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SOUND CASTING (P) LTD. V. DY. CIT REPORTED IN 250 CTR 119 (BOM.) (HC), HAS HELD THAT THERE IS NO ALLEGATION IN THE REASONS WHICH HAVE BEEN ASSESSEE THAT THERE WAS ANY FAILURE ON HIS PART TO FULLY AND TRULY DISCLOSE MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THEREFORE REOPENING BEYOND FOUR YEARS WAS NOT VALID. (A.Y. 2005 4.6. THE HONBLE DELHI HIGH COURT IN THE CASE OF (DEL.)(HC) HAS HELD AS FOLLOWS: THE REASONS RECORDED BY THE ASSESSING OFFICER IN THE PRESENT CASE DO CONFIRM OUR APPREHENSION ABOUT THE HARM THAT A LESS STRICT INTERPRETATION OF THE WORDS REASON T INTIMATION ISSUED UNDER SECTION 143(1) CAN CAUSE TO THE TAX REGIME. THERE IS NO WHISPER IN THE REASONS RECORDED, OF ANY TANGIBLE MATERIAL WHICH CAME TO THE POSSESSION OF THE ASSESSING OFFICER SUBSEQUENT TO THE ISSUE OF THE INTIMATIO UNDER SECTION 147. 4.7. THE HONBLE DELHI HIGH COURT IN THE CASE OF HARYANA ACRYLIC MANUFACTURING CO. V. COMMISSIONER OF INCOME- TAX AND ANOR. REPORTED IN [2009] 308 ITR 38 (DELHI) HAS HELD AS FO 26 VIEWED IN THIS LIGHT, THE PROVISO TO SECTION 147 OF THE SAID ACT, CARVES OUT AN EXCEPTION FROM THE MAIN PROVISIONS OF SECTION 147. IF A CASE WERE TO FALL WITHIN THE PROVISO, WHETHER OR NOT IT WAS COVERED UNDER THE MAIN PROVISIONS OF SECTION 147 EXCEPTION CARVED OUT BY THE PROVISO CAME INTO PLAY, THE CASE WOULD FALL OUTSIDE THE AMBIT OF SECTION 147. 27 EXAMINING THE PROVISO [SET OUT ABOVE], WE FIND THAT NO ACTION CAN BE TAKEN UNDER SECTION 147 AFTE R THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IF THE FOLLOWING CONDITIONS ARE SATISFIED: (A) AN ASSESSMENT UNDER SUB RELEVANT ASSESSMENT YEAR; AND (B) FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE: (I) TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB 3 THE ORIGINAL ASSESSMENT IN THIS CASE HAS BEEN COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DT. 04/05/2012. THE REOPENING IS BEYOND A PERIOD OF FOUR YEARS FROM THE END HE ASSESSMENT YEAR AND HENCE THE PROVISO TO SECTION 147 OF THE ACT, IS APPLICABLE. A PERUSAL OF THE REASONS FOR REOPENING DEMONSTRATES THAT THERE IS NO ALLEGATION MADE BY THE ASSESSING OFFICER THAT THERE WAS ANY FAILURE ON THE PART OF THE ASSESSEE TO SCLOSE TRULY AND FULLY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT. THIS BENCH OF THE TRIBUNAL, WHILE ADJUDICATING A SIMILAR ISSUE IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2009-10 IN ITA NO. 2607/KOL/2018, ORDER DT. JULY 24 WE FIND THAT THE A BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. BEEKAY STEEL INDUSTRIES XXX, KOLKATA, IN I.T.A. NO. 105/KOL/2015, ORDER DT. 31/05/2017, HELD AS FOLLOWS: 4.4. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF TAO PUBLISHING (P) LTD. V. DY.CIT REPORTED IN (2015) 370 ITR 135 (BOM.), HAS HELD AS FOLLOWS: - 10. AS STATED ABOVE, THE REASONS SUPPLIED TO THE PETITIONER DO NOT DISCLOSE THAT THERE WAS ANY FAILURE ON THE PART OF THE PETITIONER TO PROVIDE ALL THE MATERI AL FACTS. THAT BEING THE POSITION, THIS GROUND COULD NOT HAVE BEEN TAKEN UP AGAINST THE PETITIONER AT THE TIME OF DISPOSING OF THE OBJECTIONS. ONCE THIS WAS NOT THE BASIS FOR ISSUANCE OF NOTICE FOR REASSESSMENT, IT CANNOT BE HELD AGAINST THE PETITIONER THA PETITIONER HAD FAILED TO MAKE A TRUE AND FULL DISCLOSURE. IT WILL HAVE TO BE HELD THAT THE PETITIONER DID NOT FAIL TO MAKE FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS. THE JURISDICTIONAL REQUIREMENT FOR CARRYING OUT THE REASSESSMENT, AFTER THE EXP IRY OF PERIOD OF FOUR YEARS, IS NOT FULFILLED IN THE PRESENT CASE. 4.5. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SOUND CASTING (P) LTD. V. DY. CIT REPORTED IN 250 CTR 119 (BOM.) (HC), HAS HELD THAT THERE IS NO ALLEGATION IN THE REASONS WHICH HAVE BEEN ASSESSEE THAT THERE WAS ANY FAILURE ON HIS PART TO FULLY AND TRULY DISCLOSE MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THEREFORE REOPENING BEYOND FOUR YEARS WAS NOT VALID. (A.Y. 2005 -06). 4.6. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ORIENT CRAFT LTD. REPORTED IN [2013] 354 ITR 356 (DEL.)(HC) HAS HELD AS FOLLOWS: THE REASONS RECORDED BY THE ASSESSING OFFICER IN THE PRESENT CASE DO CONFIRM OUR APPREHENSION ABOUT THE HARM THAT A LESS STRICT INTERPRETATION OF THE WORDS REASON T O BELIEVE VIS INTIMATION ISSUED UNDER SECTION 143(1) CAN CAUSE TO THE TAX REGIME. THERE IS NO WHISPER IN THE REASONS RECORDED, OF ANY TANGIBLE MATERIAL WHICH CAME TO THE POSSESSION OF THE ASSESSING OFFICER SUBSEQUENT TO THE ISSUE OF THE INTIMATIO N. IT REFLECTS AN ARBITRARY EXERCISE OF THE POWER CONFERRED UNDER SECTION 147. 4.7. THE HONBLE DELHI HIGH COURT IN THE CASE OF HARYANA ACRYLIC MANUFACTURING CO. V. COMMISSIONER OF TAX AND ANOR. REPORTED IN [2009] 308 ITR 38 (DELHI) HAS HELD AS FO LLOWS: VIEWED IN THIS LIGHT, THE PROVISO TO SECTION 147 OF THE SAID ACT, CARVES OUT AN EXCEPTION FROM THE MAIN PROVISIONS OF SECTION 147. IF A CASE WERE TO FALL WITHIN THE PROVISO, WHETHER OR NOT IT WAS COVERED UNDER THE MAIN PROVISIONS OF SECTION 147 OF THE SAID ACT WOULD NOT BE MATERIAL. ONCE THE EXCEPTION CARVED OUT BY THE PROVISO CAME INTO PLAY, THE CASE WOULD FALL OUTSIDE THE AMBIT OF EXAMINING THE PROVISO [SET OUT ABOVE], WE FIND THAT NO ACTION CAN BE TAKEN UNDER SECTION 147 R THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IF THE FOLLOWING CONDITIONS ARE SATISFIED: (A) AN ASSESSMENT UNDER SUB - SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR; AND (B) UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE: (I) TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB - SECTION (1) OF SECTION 142 OR ITA NO. 1160/KOL/2019 ASSESSMENT YEAR: 2010-11 INDIAN WIRE & STEEL PRODUCTS THE ORIGINAL ASSESSMENT IN THIS CASE HAS BEEN COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DT. 04/05/2012. THE REOPENING IS BEYOND A PERIOD OF FOUR YEARS FROM THE END HE ASSESSMENT YEAR AND HENCE THE PROVISO TO SECTION 147 OF THE ACT, IS APPLICABLE. A PERUSAL OF THE REASONS FOR REOPENING DEMONSTRATES THAT THERE IS NO ALLEGATION MADE BY THE ASSESSING OFFICER THAT THERE WAS ANY FAILURE ON THE PART OF THE ASSESSEE TO THIS BENCH OF THE TRIBUNAL, WHILE ADJUDICATING A SIMILAR ISSUE IN THE ASSESSEES ITA NO. 2607/KOL/2018, ORDER DT. JULY 24 TH , WE FIND THAT THE A BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. BEEKAY STEEL INDUSTRIES XXX, KOLKATA, IN I.T.A. NO. 105/KOL/2015, ORDER DT. 31/05/2017, HELD AS FOLLOWS: TAO PUBLISHING (P) LTD. V. DY.CIT REPORTED IN (2015) 10. AS STATED ABOVE, THE REASONS SUPPLIED TO THE PETITIONER DO NOT DISCLOSE THAT THERE WAS ANY AL FACTS. THAT BEING THE POSITION, THIS GROUND COULD NOT HAVE BEEN TAKEN UP AGAINST THE PETITIONER AT THE TIME OF DISPOSING OF THE OBJECTIONS. ONCE THIS WAS NOT THE BASIS FOR ISSUANCE OF NOTICE FOR REASSESSMENT, IT CANNOT BE HELD AGAINST THE PETITIONER THA T THE PETITIONER HAD FAILED TO MAKE A TRUE AND FULL DISCLOSURE. IT WILL HAVE TO BE HELD THAT THE PETITIONER DID NOT FAIL TO MAKE FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS. THE JURISDICTIONAL REQUIREMENT FOR CARRYING OUT IRY OF PERIOD OF FOUR YEARS, IS NOT FULFILLED IN THE PRESENT CASE. 4.5. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SOUND CASTING (P) LTD. V. DY. CIT REPORTED IN 250 CTR 119 (BOM.) (HC), HAS HELD THAT THERE IS NO ALLEGATION IN THE REASONS WHICH HAVE BEEN DISCLOSED TO THE ASSESSEE THAT THERE WAS ANY FAILURE ON HIS PART TO FULLY AND TRULY DISCLOSE MATERIAL FACTS NECESSARY FOR CIT VS. ORIENT CRAFT LTD. REPORTED IN [2013] 354 ITR 356 THE REASONS RECORDED BY THE ASSESSING OFFICER IN THE PRESENT CASE DO CONFIRM OUR APPREHENSION O BELIEVE VIS --VIS AN INTIMATION ISSUED UNDER SECTION 143(1) CAN CAUSE TO THE TAX REGIME. THERE IS NO WHISPER IN THE REASONS RECORDED, OF ANY TANGIBLE MATERIAL WHICH CAME TO THE POSSESSION OF THE ASSESSING OFFICER N. IT REFLECTS AN ARBITRARY EXERCISE OF THE POWER CONFERRED 4.7. THE HONBLE DELHI HIGH COURT IN THE CASE OF HARYANA ACRYLIC MANUFACTURING CO. V. COMMISSIONER OF VIEWED IN THIS LIGHT, THE PROVISO TO SECTION 147 OF THE SAID ACT, CARVES OUT AN EXCEPTION FROM THE MAIN PROVISIONS OF SECTION 147. IF A CASE WERE TO FALL WITHIN THE PROVISO, WHETHER OR NOT IT WAS OF THE SAID ACT WOULD NOT BE MATERIAL. ONCE THE EXCEPTION CARVED OUT BY THE PROVISO CAME INTO PLAY, THE CASE WOULD FALL OUTSIDE THE AMBIT OF EXAMINING THE PROVISO [SET OUT ABOVE], WE FIND THAT NO ACTION CAN BE TAKEN UNDER SECTION 147 R THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IF THE FOLLOWING SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE: (I) TO MAKE A RETURN SECTION (1) OF SECTION 142 OR SECTI ON 148; OR (II) TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. CONDITION (A) IS ADMITTEDLY SATISFIED INASMUCH AS THE ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE SAID ACT. CONDITION ESCAPEMENT OF INCOME CHARGEABLE TO TAX. THE ESCAPEMENT MUST ARISE OUT OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB- SECTION (1) OF SECTION 142 OR S PETITIONER DID FILE THE RETURN. SINCE THERE WAS NO FAILURE TO MAKE THE RETURN, THE ESCAPEMENT OF INCOME CANNOT BE ATTRIBUTED TO SUCH FAILURE. THIS LEAVES US WITH THE ESCAPEMENT OF INCOME CHARGEABLE TO TAX WHICH ARISES OUT OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. IF IT IS ALSO FOUND THAT THE PETITIONER HAD DISCLOSED FULLY AND TRULY ALL MATERIAL FACT THEN NO ACTION UNDER SECTION 147 COULD HAVE BEEN TAKEN AFTER THE FOUR YEAR PERIOD INDICATED ABOVE. SO, THE KEY QUESTION IS WHETHER OR NOT THE PETITIONER HAD MADE A FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS ? 29 IN THE REASONS SUPPLIED TO THE PETITIONER, THERE IS NO WHISPER, WHAT TO SPEAK OF ANY ALLEGATION, THAT THE PETITIONER HAD FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THAT BECAUSE OF THIS FAILURE THERE HAS BEEN AN ESCAP TO TAX. MERELY HAVING A REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT, IS NOT SUFFICIENT TO REOPEN ASSESSMENTS BEYOND THE FOUR YEAR PERIOD INDICATED ABOVE. THE ESCAPEMENT OF INCOME FROM ASSESSMENT MUST ALSO BE OCCASIONED B MATERIAL FACTS, FULLY AND TRULY. THIS IS A NECESSARY CONDITION FOR OVERCOMING THE BAR SET UP BY THE PROVISO TO SECTION 147. IF THIS CONDITION IS NOT SATISFIED, THE BAR WOULD OPERATE AND NO ACTION UNDER SECTION 147 COULD BE TAKEN. WE HAVE ALREADY MENTIONED ABOVE THAT THE REASONS SUPPLIED TO THE PETITIONER DOES NOT CONTAIN ANY SUCH ALLEGATION. CONSEQUENTLY, ONE OF THE CONDITIONS PRECEDENT FOR REMOVING THE BAR AGAINST TAKING ACTION AFTER THE SAID FOUR YEAR UNFULFILLED. IN OUR RECENT DECISION IN WEL INTERTRADE PRIVATE LTD (SUPRA) WE HAD AGREED WITH THE VIEW TAKEN BY THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF DULI CHAND SINGHANIA (SUPRA) THAT, IN THE ABSENCE OF AN ALLEGATION IN THE REASONS OCCURRED BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, ANY ACTION TAKEN BY THE ASSESSING OFFICER UNDER SECTION 147 BEYOND THE FOUR Y EAR PERIOD WOULD BE WHOLLY WITHOUT JURISDICTION. REITERATING OUR VIEW HOLD THAT THE NOTICE DATED 29.03.2004 UNDER SECTION 148 BASED ON THE RECORDED REASONS AS SUPPLIED TO THE PETITIONER AS WELL AS THE CONSEQUENT ORDER DATED 02.03.2005 ARE WITHOUT JURISDICTION AS NO ACTION UNDER SECTION 147 COULD BE TAKEN BEYOND THE FOUR YEAR PERIOD IN THE CIRCUMSTANCES NARRATED ABOVE. 4.8. APPLYING THE PROPOSITIONS LAID DOWN IN THE ABOVE CASE LAW TO THE FACTS TO THIS CASE, WE HAVE TO NECESSARILY HOLD THAT THE RE - WHISPER IN THE REASONS RECORDED FOR THE REOPENING OF THE ASSESSMENT THAT THERE IS A FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE NECESSARY MATERIAL FACT THE 1 ST PROVISO TO SECTION 147 OF THE ACT. IN THIS CASE NO TANGIBLE MATERIALS HAVE COME TO THE POSSESSION OF THE ASSESSING OFFICER SUBSEQUENT TO THE ASSESSMENT ORDER U/S 143(3). RE SAME MATE RIAL AND RECORD AND HENCE IT IS BAD IN LAW. AS FAR AS THE CONTENTION, THAT THERE IS A CHANGE IN OPINION IS CONCERNED, WE ARE UNABLE TO AGREE WITH THE LD. COUNSEL FOR THE ASSESSEE AS THERE WAS NEITHER A QUERY ON THIS ISSUE BY THE ASSESSING OFFICER DURING TH REPLY BY THE ASSESSEE. HENCE THERE WAS NO OPINION FORMED. THUS, THE QUESTION OF CHANGE OF OPINION DOES NOT ARISE. 4.9. IN ANY EVENT, AS WE HAVE HELD THAT THE RE THE PROVISO TO SECTION 147 OF THE ACT, AND AS NO TANGIBLE MATERIAL HAS COME TO THE POSSESSION OF THE ASSESSING OFFICER, WE QUASH THE ASSESSMENT AND ALLOW THE APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW 5.1. APPLYING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE REFERRED CASE OF THE CASE ON HAND, I HOLD THAT THE RE 6. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. 4 ON 148; OR (II) TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. CONDITION (A) IS ADMITTEDLY SATISFIED INASMUCH AS THE ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE SAID ACT. CONDITION (B) DEALS WITH A SPECIAL KIND OF ESCAPEMENT OF INCOME CHARGEABLE TO TAX. THE ESCAPEMENT MUST ARISE OUT OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SECTION (1) OF SECTION 142 OR S ECTION 148. THIS IS CLEARLY NOT THE CASE HERE BECAUSE THE PETITIONER DID FILE THE RETURN. SINCE THERE WAS NO FAILURE TO MAKE THE RETURN, THE ESCAPEMENT OF INCOME CANNOT BE ATTRIBUTED TO SUCH FAILURE. THIS LEAVES US WITH THE ESCAPEMENT OF INCOME TO TAX WHICH ARISES OUT OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. IF IT IS ALSO FOUND THAT THE PETITIONER HAD DISCLOSED FULLY AND TRULY ALL MATERIAL FACT S NECESSARY FOR ITS ASSESSMENT, THEN NO ACTION UNDER SECTION 147 COULD HAVE BEEN TAKEN AFTER THE FOUR YEAR PERIOD INDICATED ABOVE. SO, THE KEY QUESTION IS WHETHER OR NOT THE PETITIONER HAD MADE A FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS ? IN THE REASONS SUPPLIED TO THE PETITIONER, THERE IS NO WHISPER, WHAT TO SPEAK OF ANY ALLEGATION, THAT THE PETITIONER HAD FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THAT BECAUSE OF THIS FAILURE THERE HAS BEEN AN ESCAP EMENT OF INCOME CHARGEABLE TO TAX. MERELY HAVING A REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT, IS NOT SUFFICIENT TO REOPEN ASSESSMENTS BEYOND THE FOUR YEAR PERIOD INDICATED ABOVE. THE ESCAPEMENT OF INCOME FROM ASSESSMENT MUST ALSO BE OCCASIONED B Y THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FACTS, FULLY AND TRULY. THIS IS A NECESSARY CONDITION FOR OVERCOMING THE BAR SET UP BY THE PROVISO TO SECTION 147. IF THIS CONDITION IS NOT SATISFIED, THE BAR WOULD OPERATE AND NO ACTION SECTION 147 COULD BE TAKEN. WE HAVE ALREADY MENTIONED ABOVE THAT THE REASONS SUPPLIED TO THE PETITIONER DOES NOT CONTAIN ANY SUCH ALLEGATION. CONSEQUENTLY, ONE OF THE CONDITIONS PRECEDENT FOR REMOVING THE BAR AGAINST TAKING ACTION AFTER THE SAID FOUR YEAR UNFULFILLED. IN OUR RECENT DECISION IN WEL INTERTRADE PRIVATE LTD (SUPRA) WE HAD AGREED WITH THE VIEW TAKEN BY THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF DULI CHAND SINGHANIA (SUPRA) THAT, IN THE ABSENCE OF AN ALLEGATION IN THE REASONS RECORDED THAT THE ESCAPEMENT OF INCOME HAD OCCURRED BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, ANY ACTION TAKEN BY THE ASSESSING OFFICER UNDER SECTION 147 EAR PERIOD WOULD BE WHOLLY WITHOUT JURISDICTION. REITERATING OUR VIEW HOLD THAT THE NOTICE DATED 29.03.2004 UNDER SECTION 148 BASED ON THE RECORDED REASONS AS SUPPLIED TO THE PETITIONER AS WELL AS THE CONSEQUENT ORDER DATED 02.03.2005 ARE WITHOUT JURISDICTION AS NO ACTION UNDER SECTION 147 COULD BE TAKEN BEYOND THE FOUR YEAR PERIOD IN THE CIRCUMSTANCES NARRATED ABOVE. 4.8. APPLYING THE PROPOSITIONS LAID DOWN IN THE ABOVE CASE LAW TO THE FACTS TO THIS CASE, WE HAVE TO - OPENING OF THE ASSESSMENT PROCEEDINGS IS NOT VALID THAT THERE IS NOT EVEN A WHISPER IN THE REASONS RECORDED FOR THE REOPENING OF THE ASSESSMENT THAT THERE IS A FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE NECESSARY MATERIAL FACT S REQUIRED FOR ASSESSMENT IN VIEW OF PROVISO TO SECTION 147 OF THE ACT. IN THIS CASE NO TANGIBLE MATERIALS HAVE COME TO THE POSSESSION OF THE ASSESSING OFFICER SUBSEQUENT TO THE ASSESSMENT ORDER U/S 143(3). RE - OPENING IS DONE BASED ON THE RIAL AND RECORD AND HENCE IT IS BAD IN LAW. AS FAR AS THE CONTENTION, THAT THERE IS A CHANGE IN OPINION IS CONCERNED, WE ARE UNABLE TO AGREE WITH THE LD. COUNSEL FOR THE ASSESSEE AS THERE WAS NEITHER A QUERY ON THIS ISSUE BY THE ASSESSING OFFICER DURING TH E ORIGINAL ASSESSMENT PROCEEDINGS, NOR THERE WAS A REPLY BY THE ASSESSEE. HENCE THERE WAS NO OPINION FORMED. THUS, THE QUESTION OF CHANGE OF OPINION DOES NOT 4.9. IN ANY EVENT, AS WE HAVE HELD THAT THE RE -OPENING IS BAD IN LAW AS IT DOES NOT FULFIL L THE REQUIREMENT OF THE PROVISO TO SECTION 147 OF THE ACT, AND AS NO TANGIBLE MATERIAL HAS COME TO THE POSSESSION OF THE ASSESSING OFFICER, WE QUASH THE ASSESSMENT AND ALLOW THE APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. APPLYING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE REFERRED CASE OF THE CASE ON HAND, I HOLD THAT THE RE -OPENING OF ASSESSMENT IS BAD IN LAW. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 1160/KOL/2019 ASSESSMENT YEAR: 2010-11 INDIAN WIRE & STEEL PRODUCTS ON 148; OR (II) TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR CONDITION (A) IS ADMITTEDLY SATISFIED INASMUCH AS THE ORIGINAL ASSESSMENT WAS (B) DEALS WITH A SPECIAL KIND OF ESCAPEMENT OF INCOME CHARGEABLE TO TAX. THE ESCAPEMENT MUST ARISE OUT OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER ECTION 148. THIS IS CLEARLY NOT THE CASE HERE BECAUSE THE PETITIONER DID FILE THE RETURN. SINCE THERE WAS NO FAILURE TO MAKE THE RETURN, THE ESCAPEMENT OF INCOME CANNOT BE ATTRIBUTED TO SUCH FAILURE. THIS LEAVES US WITH THE ESCAPEMENT OF INCOME TO TAX WHICH ARISES OUT OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. IF IT IS ALSO FOUND S NECESSARY FOR ITS ASSESSMENT, THEN NO ACTION UNDER SECTION 147 COULD HAVE BEEN TAKEN AFTER THE FOUR YEAR PERIOD INDICATED ABOVE. SO, THE KEY QUESTION IS WHETHER OR NOT THE PETITIONER HAD MADE A FULL AND TRUE DISCLOSURE IN THE REASONS SUPPLIED TO THE PETITIONER, THERE IS NO WHISPER, WHAT TO SPEAK OF ANY ALLEGATION, THAT THE PETITIONER HAD FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR EMENT OF INCOME CHARGEABLE TO TAX. MERELY HAVING A REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT, IS NOT SUFFICIENT TO REOPEN ASSESSMENTS BEYOND THE FOUR YEAR PERIOD INDICATED ABOVE. THE ESCAPEMENT OF INCOME Y THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FACTS, FULLY AND TRULY. THIS IS A NECESSARY CONDITION FOR OVERCOMING THE BAR SET UP BY THE PROVISO TO SECTION 147. IF THIS CONDITION IS NOT SATISFIED, THE BAR WOULD OPERATE AND NO ACTION SECTION 147 COULD BE TAKEN. WE HAVE ALREADY MENTIONED ABOVE THAT THE REASONS SUPPLIED TO THE PETITIONER DOES NOT CONTAIN ANY SUCH ALLEGATION. CONSEQUENTLY, ONE OF THE CONDITIONS PRECEDENT FOR REMOVING THE BAR AGAINST TAKING ACTION AFTER THE SAID FOUR YEAR PERIOD REMAINS UNFULFILLED. IN OUR RECENT DECISION IN WEL INTERTRADE PRIVATE LTD (SUPRA) WE HAD AGREED WITH THE VIEW TAKEN BY THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF DULI CHAND SINGHANIA (SUPRA) RECORDED THAT THE ESCAPEMENT OF INCOME HAD OCCURRED BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, ANY ACTION TAKEN BY THE ASSESSING OFFICER UNDER SECTION 147 EAR PERIOD WOULD BE WHOLLY WITHOUT JURISDICTION. REITERATING OUR VIEW -POINT, WE HOLD THAT THE NOTICE DATED 29.03.2004 UNDER SECTION 148 BASED ON THE RECORDED REASONS AS SUPPLIED TO THE PETITIONER AS WELL AS THE CONSEQUENT ORDER DATED 02.03.2005 ARE WITHOUT JURISDICTION AS NO ACTION UNDER SECTION 147 COULD BE TAKEN BEYOND THE FOUR YEAR PERIOD IN THE 4.8. APPLYING THE PROPOSITIONS LAID DOWN IN THE ABOVE CASE LAW TO THE FACTS TO THIS CASE, WE HAVE TO OPENING OF THE ASSESSMENT PROCEEDINGS IS NOT VALID THAT THERE IS NOT EVEN A WHISPER IN THE REASONS RECORDED FOR THE REOPENING OF THE ASSESSMENT THAT THERE IS A FAILURE ON THE PART OF S REQUIRED FOR ASSESSMENT IN VIEW OF PROVISO TO SECTION 147 OF THE ACT. IN THIS CASE NO TANGIBLE MATERIALS HAVE COME TO THE POSSESSION OF OPENING IS DONE BASED ON THE RIAL AND RECORD AND HENCE IT IS BAD IN LAW. AS FAR AS THE CONTENTION, THAT THERE IS A CHANGE IN OPINION IS CONCERNED, WE ARE UNABLE TO AGREE WITH THE LD. COUNSEL FOR THE ASSESSEE AS THERE WAS NEITHER A E ORIGINAL ASSESSMENT PROCEEDINGS, NOR THERE WAS A REPLY BY THE ASSESSEE. HENCE THERE WAS NO OPINION FORMED. THUS, THE QUESTION OF CHANGE OF OPINION DOES NOT L THE REQUIREMENT OF THE PROVISO TO SECTION 147 OF THE ACT, AND AS NO TANGIBLE MATERIAL HAS COME TO THE POSSESSION OF THE APPLYING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE REFERRED CASE -LAW TO THE FACTS 9. CONSISTENT WITH THE VIEW TAKEN BY ME IS THE ASSESSEES OWN CASE, I HAVE TO NECESSARILY HOLD THAT THE REOPENING IS BAD IN LAW AND IS QUASHED. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE DATED : 10.01.2020 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. INDIAN WIRE & STEEL PRODUCTS 2 ND FLOOR 113A, MANOHAR DAS KATRA KOLKATA 700 007 2. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 5 CONSISTENT WITH THE VIEW TAKEN BY ME IS THE ASSESSEES OWN CASE, I HAVE TO NECESSARILY HOLD THAT THE REOPENING IS BAD IN LAW AND IS QUASHED. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 10 TH DAY OF JANUARY, 2020. SD/- [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER INDIAN WIRE & STEEL PRODUCTS COMMISSIONER OF INCOME TAX, CIRCLE -44, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 1160/KOL/2019 ASSESSMENT YEAR: 2010-11 INDIAN WIRE & STEEL PRODUCTS CONSISTENT WITH THE VIEW TAKEN BY ME IS THE ASSESSEES OWN CASE, I HAVE TO TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES