ACIT, Pune V. Wikas Electricals & Ceramics Pvt. L:td., Pune

ITA 1371/PUN/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7437 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-03-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 01-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ABHAY DAMLE
• Keywords: Reopening of assessment; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI SHAILENDRA KUMAR YA DAV J UDICIAL MEMBER AND SHRI D. KARUNAKARA RAO A CCOUNTANT M EMBER ITA NO. 1371 /PN/ 20 0 9 ( ASSTT. YEAR : 200 4 - 05 ) ACIT, CIRCLE - 7, APPELLANT 60/ 61, ERANDWANE, PRAPTIKAR SADAN, KARVE ROAD, PUNE 411 004 VS. WIKAS ELECTRICALS & CERAMICS PRODUCTS PVT. LTD., RESPONDENT AKSHAY COMPLEX, PUSHPAK PARK, AUNDH, PUNE 411 007 PAN : NOT AVAILABLE APP ELLANT BY : NONE RESPONDENT BY : SHRI ABHAY DAMLE ORDER PER D KARUNAKARA RAO AM THIS IS AN APPEAL FILED BY THE REVENUE ARISING OUT OF THE ORDER OF CIT(A) III, PUNE DATED 17.9.2009. CORE LEGAL ISSUE RAISED IN THE APPEAL RELATES TO THE VALIDITY OF THE REOPENING OF THE ASSESSM ENT U/S 147 OF THE ACT WHEN THE CASE INVOLVES THE CHANGE OF OPINION. OF COURSE, THERE ARE GROUNDS ON THE MERITS TOO. 2. AT THE VERY OUTSET, IT IS FAIRLY DEMONSTRATED THAT THIS IS THE CASE WHERE A.O ISSUED NOTICE U/S. 147 ON AN ISSUE RELATING TO TAXABIL ITY OF SUM OF RS. 22.36 LACS WHEN THE SAID ISSUE WAS ALREADY EXAMINED AT LENGTH BY THE A.O IN THE REGULAR ASSESSMENT PROCEEDINGS. STATING THAT IT AMOUNTS TO CHANGE OF OPINION, CIT(A) QUASHED THE RE - ASSESSMENT PROCEEDINGS AS PER THE DISCUSSION IN PARA 3 .6 OF THEN IMPUGNED ORDER. OTHERWISE THE ISSUE IS ALREADY COVERED IN FAVOUR OF THE ASSESSEE BY SERIES OF BINDING JUDGMENTS. HOWEVER, LD. D.R. RELIED ON THE ORDER OF THE A.O. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE IMPUGNED ORDER. WE HAVE A LSO GONE THROUGH THE ORIGINAL ASSESSMENT ORDER PASSED BY A.O ON 17.11.2008. WE HAVE ALSO GONE THROUGH PARA 3.6 OF THE IMPUGNED ORDER AND FOR THE SAKE OF COMPLETENESS, THE SAME IS REPRODUCED HEREUNDER : ITA 1371 /PN/ 2009 WIKAS ELECTRICALS & CERAMICS PRODUCTS PVT. LTD., ( A.Y. 2004 - 05 ) . 2 3.6 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF T HE APPELLANT AND HAS PERUSED THE MATERIAL ON RECORD. I FIND THAT IN THE REMAND REPORT, THE ASSESSING OFFICER HAS NOT SQUARELY MET THE OBJECTION OF THE APPELLANT REGARDING ILLEGALITY OF THE INITIATION OF REASSESSMENT PROCEEDINGS ON THE GROUND OF CHANGE OF OPINION . ON THE OTHER HAND, THE MATERIAL ON RECORD SUPPORTS THE CONTENTION OF THE APPELLANT. THERE CAN BE NO DENIAL OF THE FACT THAT THE ASSESSEE HAD DISCLOSED ALL MATERIAL FACTS RELATING TO THE TRANSACTION IN QUESTION IN THE RETURN OF INCOME FILED BY I T . FURTHER, AS IS EVIDENT FROM THE RECORD, THE QUERIES RAISED BY THE THEN ASSESSING OFFICER AND THE SUBMISSIONS MADE BY THE ASSESSEE AS TO WHY THE AMOUNT OF RS.22,36,000 WAS NOT TAXABLE AS INCOME OF THE YEAR UNDER CONSIDERATION, CLEARLY SHOW THAT THE ASSE SSING OFFICER HAD ALREADY DEALT WITH THIS ISSUE AND AFTER GIVING DUE CONSIDERATION , HAD ARRIVED AT THE CONCLUSION OF NOT INCLUDING THE AMOUNT OF RS.22,36,000 IN THE INCOME OF THE YEAR. UNDER THESE CIRCUMSTANCES, WITHOUT BRINGING ON RECORD ANY NEW FACTS, T HE DECISION OF THE ASSESSING OFFICER TO TREAT THE AMOUNT OF RS.22,36,000 AS INCOME CHARGEABLE TO TAX FOR THE A.Y. 2004 - 05 IS NOTHING BUT CHANGE OF OPINION AND AS HELD IN VARIOUS JUDICIAL PRONOUNCEMENTS, THE REOPENING OF ASSESSMENT ON THE BASIS OF CHANGE O F OPINION IS NOT WARRANTED IN LAW UNDER THE PROVISIONS OF SECTION 147 OF THE I.T. ACT. I, THEREFORE, HOLD THAT THE ACTION OF THE ASSESSING OFFICER IN INITIATING REASSESSMENT PROCEEDINGS UNDER SECTION 147 IS NOT IN ACCORDANCE WITH THE PROVISIONS OF LAW . THEREFORE, THE ASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 147 IS BAD IN LAW AND IS CANCELLED. 4. FROM THE ABOVE, IT IS EVIDENT THAT IT IS A CASE OF CHANGE OF OPINION AS THE MATTER WAS ALSO CONSIDERED BY THE A.O. DURING THE REGULAR ASSESSMENT PROCEEDIN GS AND THE ASSESSEE DUTIFULLY DISCLOSED ALL THE RELEVANT MATERIAL BEFORE THE AO . THE QUERIES RAISED BY THE A.O EVIDENCES THE ABOVE. IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT IT IS A CASE OF CHANGE OF OPINION AND IN SUCH CASE, A.O IS BARRED FROM A SSUMING JURISDICTION U/S. 148 OF THE INCOME TAX ACT. THEREFORE, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) ON THIS ISSUE. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED . ORDER PRONOUNCED IN OPEN COURT ON 25TH MARC H , 201 1 SD/ - SD/ - ( SHAILENDRA KUMAR YADAV ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER P UNE DATED THE 25 TH MARCH , 201 1 US COPY OF THE ORDER IS FORWARDED TO : ITA 1371 /PN/ 2009 WIKAS ELECTRICALS & CERAMICS PRODUCTS PVT. LTD., ( A.Y. 2004 - 05 ) . 3 1. THE A PP ELLANT 2. THE RESPONDENT 3. THE CIT(A) - I I I , PUNE 4. THE CIT - I V , PUNE 5. THE D.R. ITAT A BENCH 6. GUARD FILE BY ORDER ASS ISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE