ACIT Circle-3 (1), V. Carlton Overseas (P) Ltd,

ITA 1535/DEL/2008

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 5493 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-03-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 23-04-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH GUPTA
• Assessee Lawyers: S C GOYAL
• Keywords: Reopening of assessment; Difference of opinion; Change of opinion
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B NEW DELHI) BEFORE G.E. VEERABHADRAPPA, HON'BLE VICE-PRESIDENT AND SHRI RAJPAL YADAV : HONBLE JUDICIAL MEMBER I.T.A. NO. 1535/DEL/2008 ASSESSMENT YEAR: 2001-02 ASSISTANT COMMISSIONER OF IT, VS. M/S . CARLTON OVERSEAS PVT. LTD. CIRCLE- 3(1), J-5, 3 RD FLOOR, SAKET, NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI MANISH GUPTA, DR ASSESSEE BY: SHRI SC GOYAL, CA ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF LEARNED CIT(APPEALS) DATED 31.01.2008 PASSED FOR ASSESSMENT YEAR 2001-02. THE GROUNDS OF APPEALS TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH RULE 8 OF THE ITAT'S RULES, THEY ARE DESCRIPTIVE AND ARGUM ENTATIVE IN NATURE. THE FIRST GROUND OF THE REVENUE IS THAT THE LEARNED CIT (APPEALS) HAS ERRED IN CANCELING THE REASSESSMENT MADE BY THE ASSESSING OF FICER UNDER SEC. 147 READ WITH SEC. 143(3) OF THE INCOME-TAX ACT, 1961. 2. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECOR D THAT ASSESSEE HAS FILED 2 THE RETURN OF INCOME ON 31.1.2001 DECLARING GROSS T OTAL INCOME OF RS.2,67,278. THIS RETURN WAS REVISED BY THE ASSESSE E ON 16.12.2002 WHEREIN IT DECLARED THE SAME GROSS TOTAL INCOME BUT SHOWN T HE TAXABLE INCOME AT RS.17,30,290 AS AGAINST ORIGINALLY SHOWN AT RS.26,8 2,373. THE ASSESSEE HAS CLAIMED DEDUCTION UNDER SEC. 80G, 80-HHC AND 80-IB OF THE ACT. ACCORDING TO THIS NOTE, IT WAS DISCLOSED BY THE ASSESSEE THAT IT IS ENTITLED FOR DEDUCTION IN BOTH THESE SECTIONS WHICH REQUIRED TO BE COMPUTE D INDEPENDENTLY SUBJECT TO THE CONDITIONS THAT AGGREGATE OF BOTH THE DEDUCT IONS SHOULD NOT EXCEED THE INCOME OF THE UNDERTAKING. AN ASSESSMENT ORDER WAS PASSED UNDER SEC.143(3) ON 31.3.2003 ON TAXABLE INCOME OF RS.17, 84,569. ASSESSING OFFICER THEREAFTER ISSUED A NOTICE UNDER SEC. 148 O F THE ACT ON 20 TH OCTOBER, 2005 WHEREBY HE SOUGHT TO REOPEN THE ASSESSMENT ON THE GROUND THAT AS PER SUB-SECTION 80-IA(9), IF ANY INDUSTRIAL UNDERTAKING IS ENTITLED FOR DEDUCTION UNDER SEC. 80-IA AND UNDER SEC. 80-HHC THEN WHILE C OMPUTING THE DEDUCTION ADMISSIBLE UNDER SEC. 80-HHC THE DEDUCTIO N CLAIMED AND GRANTED UNDER SEC. 80-I IS TO BE EXCLUDED. ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE HAD CLAIMED A DEDUCTION UNDER SEC. 80-IB A ND 80-HHC. DURING THE ASSESSMENT PROCEEDINGS, WHILE COMPUTING THE DEDUCTI ON UNDER BOTH THESE SECTIONS, THE APPLICABILITY OF SEC. 80-IA(9) WAS NO T CONSIDERED WHICH LEAD TO 3 ESCAPEMENT OF INCOME CHARGEABLE TO TAX. ACCORDINGLY , THE ASSESSING OFFICER HAS FRAMED THE REASSESSMENT ORDER ON 15.12.2006. 3. ON APPEAL, LEARNED CIT(APPEALS) HAS QUASHED THE ASSESSMENT ON THE GROUND THAT IT HAS BEEN REOPENED ONLY ON THE BASIS OF CHANGE OF OPINION. THERE WAS NO FRESH MATERIAL WITH THE ASSESSING OFFI CER. 4. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUT SET SUBMITTED THAT FOR THE SAME REASONS ASSESSMENT HAS BEEN REOPENED I N ASSESSMENT YEAR 2002- 03. ASSESSEE HAS CHALLENGED THE REOPENING OF THE AS SESSMENT BY WAY OF A WRIT PETITION BEARING NO.9180/2007. HON'BLE DELHI H IGH COURT HAS ALLOWED THE WRIT PETITION OF THE ASSESSEE AND QUASHED THE R EASSESSMENT PROCEEDINGS VIDE ORDER DATED 18 TH AUGUST, 2009. HE PLACED ON RECORD COPY OF THE HON' BLE DELHI HIGH COURTS DECISION AND SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THIS DECISION. LEARNED DR WAS UNABLE TO CONTROVERT THE CONTENTION OF THE LEARNED COUNSEL FO R THE ASSESSEE. 5. ON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTA NCES, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL RAISED BY THE RE VENUE. THE REASONS FOR REOPENING OF ASSESSMENT IN ASSESSMENT YEAR 2002-03 WHICH IS SUBSEQUENT TO THE PRESENT ASSESSMENT YEAR ARE SIMILAR TO THE REAS ONS RECORDED IN THE PRESENT ASSESSMENT YEAR. WE HAVE SPECIFICALLY PERUSED THE C OPIES OF THE REASONS 4 AVAILABLE AT PAGE 95 OF THE PAPER BOOK AS WELL AS T HE REASONS REPRODUCED BY THE HON'BLE HIGH COURT IN PARAGRAPH 5 OF THE JUDGME NT. THE OBSERVATIONS OF THE HON'BLE HIGH COURT FROM PARAGRAPH 9 ARE WORTH T O NOTE, THEY READ AS UNDER: 9. WE FIND THAT THE ARGUMENTS ON BEHALF OF THE PET ITIONER ARE WELL FOUNDED AND IT MUST SUCCEED. THE AUDIT REPORT MEREL Y GIVES AN OPINION WITH REGARD TO THE NON-AVAILABILITY OF THE DEDUCTION BOTH UNDER SEC. 80-IA AND UNDER SEC.80-HHC AND THAT THE DEDUCT ION UNDER SEC. 80-IA WAS NOT DEDUCTED FROM THE PROFITS OF THE BUSI NESS WHILE COMPUTING DEDUCTION UNDER SEC. 80-HHC. CLEARLY, THE REFORE, THERE WAS NO NEW OR FRESH MATERIAL BEFORE THE ASSESSING O FFICER EXCEPT THE OPINION OF THE REVENUE AUDIT PARTY. 10. SINCE IT IS SETTLED LAW THAT MERE CHANGE OF OPI NION CANNOT FORM THE BASIS FOR ISSUING OF A NOTICE UNDER SEC. 147/14 8 OF THE ACT, THEREFORE, WE DO NOT PROPOSE TO BURDEN OUR JUDGMENT WITH THE SAID JUDGMENTS. IN FACT, AS STATED ABOVE, THE COUNSEL FO R THE REVENUE DOES NOT DISPUTE THIS PRINCIPLE OF LAW. 11. IN VIEW OF THE ABOVE, THE PRESENT WRIT PETITION IS ALLOWED AND THE IMPUGNED NOTICE DATED 29.1.2007 ISSUED BY THE R ESPONDENT NO.2 IS QUASHED. A WRIT IN THE NATURE OF PROHIBITION IS ISS UED COMMANDING THE RESPONDENT, MORE PARTICULARLY THE RESPONDENT NO.2, TO FORBEAR IN GIVING ANY EFFECT TO OR TAKING ANY STEPS WHATSOEVER PURSUANT TO AND IN FURTHERANCE OF THE NOTICE UNDER SEC. 148 OF THE ACT FOR THE PROCEEDINGS INITIATED WITH RESPECT TO THE ASSESSMENT YEAR 2002- 03. 5 6. SINCE THERE IS NO DISPARITY ON FACTS, RESPECTFUL LY FOLLOWING THE ORDER OF THE HON'BLE DELHI HIGH COURT, WE DO NOT FIND ANY ME RIT IN THE GROUND RAISED BY THE REVENUE. THE LEARNED CIT(APPEALS) HAS RIGHTL Y QUASHED THE REASSESSMENT ORDER. IN VIEW OF THIS FINDING, OTHER GROUNDS OF APPEAL BECOME REDUNDANT AND WE DO NOT DEEM IT NECESSARY TO DEAL W ITH OTHER GROUNDS. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED DECISION PRONOUNCED IN THE OPEN COURT ON 19.03.201 0 ( G.E. VEERABHADRAPPA ) ( RAJPAL Y ADAV ) VICE-PRESIDENT JUDICIAL MEMBER DATED: 19/03/2010 MOHAN LAL COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR:ITAT ASSISTANT REGISTRAR