Income-tax Officer, V. Shri Siddhivinayak & SS Ingawale Construction, Satara

ITA 2075/PUN/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1019 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-08-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 29-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Audit objection; Tangible material; Difference of opinion; Assessment record; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 54; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , !'!! # , $ % BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NOS. 2075 & 2076/PN/2013 $& ' !(' / ASSESSMENT YEARS : 2006-07 & 2007-08 INCOME TAX OFFICER, WARD 1, SATARA ....... / APPELLANT )& / V/S. SHRI SIDDHIVINAYAK & SS INGAWALE CONSTRUCTION, 12, DAULAT HOUSING SOCIETY, MARKET YARD, SHANIWAR PETH, KARAD, SATARA PAN : ABCFS0608K / RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SHRI RAJESH DAMOR / DATE OF HEARING : 17-08-2015 / DATE OF PRONOUNCEMENT : 09-10-2015 * / ORDER PER VIKAS AWASTHY, JM : THE APPEALS HAVE BEEN FILED BY THE REVENUE AGAINST THE O RDER OF COMMISSIONER OF INCOME TAX (APPEALS)-III, PUNE DATED 17- 09-2013 COMMON FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08. 2. IN APPEALS, THE REVENUE HAS ASSAILED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN STRIKING DOWN THE REASSESSMENT PROCEEDINGS, AS WELL AS, DELETING THE ADDITION MADE IN REASSESSMENT PROCEEDINGS ON MERITS. 2 ITA NOS. 2075 & 2076/PN/2013, A.YS. 2006-07 & 2007-08 3. THE BRIEF FACTS OF THE CASE ARE : THE ASSESSEE IS ENG AGED IN THE BUSINESS OF CONSTRUCTION. THE ASSESSEE FILED ITS RETURN OF INCOME FO R THE ASSESSMENT YEAR 2006-07 ON 31-10-2006 DECLARING TOTAL INCOME OF RS.1,39,700/-. THE ASSESSMENT ORDER U/S. 143(3) WAS PASS ED IN THE CASE OF ASSESSEE ON 28-11-2008 COMPUTING TOTAL INCOME OF RS.1,86,040/-. IN THE ASSESSMENT YEAR 2007-08, THE ASSE SSEE FILED RETURN OF INCOME ON 31-10-2007 DECLARING TOTAL INCOME OF R S.16,830/-. THE ASSESSING OFFICER VIDE ORDER DATED 09-12-2009 PASSED U/S. 143(3) COMPUTED TOTAL INCOME OF THE ASSESSEE AS RS.66,400/-. S UBSEQUENTLY, ON VERIFICATION OF THE RECORDS FOR THE ASSESSMENT YEAR 20 07-08, AN AUDIT OBJECTION WAS RAISED WITH RESPECT TO TRIPARTITE AGREEMEN T BETWEEN THE ASSESSEE, MAHARASHTRA JEEVAN PRADHIKARAN (MJP) AND THE COMPANIES SUPPLYING THE MATERIAL. THE SAID TRIPARTITE AGREEMENT WAS ENTERED BETWEEN THE AFORESAID PARTIES FOR EXECUTION OF THE PROJEC T MALKAPUR WATER SUPPLY SCHEME, KARAD. ON THE BASIS OF OBJECTIONS RAISED BY THE AG AUDIT PARTY, THE ASSESSING OFFICER ISSUED NOTICE DATED 1 8-01-2012 U/S. 154/155 OF THE ACT. HOWEVER, THE PROCEEDINGS U/S. 1 54 WERE DROPPED AND THE ASSESSING OFFICER INITIATED REASSESSMENT PROCEEDINGS U/S. 147 R.W.S. 148 OF THE ACT. NOTICE U/S. 148 WAS ISSUED TO THE ASSESSEE ON 27-02-2012. THE ASSESSEE FILED OBJECTIONS A GAINST THE REASONS RECORDED FOR REOPENING THE COMPLETED ASSESSME NTS IN THE IMPUGNED ASSESSMENT YEARS. THE ASSESSING OFFICER REJECTE D THE OBJECTIONS RAISED BY THE ASSESSEE VIDE ORDER/LETTER DAT ED 22-11-2012. THEREAFTER, THE ASSESSING OFFICER PASSED ASSESSMENT ORDER S, BOTH DATED 24-12-2012 U/S. 143(3) R.W.S. 147 OF THE ACT FOR THE RESPE CTIVE ASSESSMENT YEARS. AGGRIEVED BY THE REASSESSMENT ORDERS, THE ASSESSEE PR EFERRED APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE COMMON ORDER FOR BOTH THE ASSESSMENT YEARS ACCEPTED THE APPEAL AND SET ASIDE TH E REASSESSMENT 3 ITA NOS. 2075 & 2076/PN/2013, A.YS. 2006-07 & 2007-08 ORDERS ON THE GROUND OF JURISDICTION, AS WELL AS ON MERITS. AGAINST THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) THE REV ENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. SHRI RAJESH DAMOR REPRESENTING THE DEPARTMENT SUBM ITTED THAT, REASSESSMENT PROCEEDINGS WERE INITIATED AGAINST THE ASSE SSEE BY FOLLOWING PROPER PROCEDURE. THE OBJECTIONS FILED BY THE AS SESSEE WERE DULY REPLIED AND REJECTED BY PASSING SPEAKING ORDER. TH E ASSESSEE HAD ENTERED INTO A TRIPARTITE AGREEMENT WITH MJP, M/S. SAW PIP ES LTD. AND OTHER THREE COMPANIES FOR EXECUTION OF A PROJECT MALKAP UR WATER SUPPLY SCHEME, KARAD, DISTT.-SATARA. THE COMPANIES WER E TO SUPPLY RAW MATERIAL FOR THE PROJECT. THE MJP DIRECTLY MADE PAY MENT TO THE COMPANIES FOR MATERIAL SUPPLIED. THE ASSESSEE RAISED BILLS TO THE MJP FOR EXECUTION OF THE PROJECT INCLUDING FOR THE MATERIALS SUP PLIED. THE RUNNING BILLS PAYABLE TO THE ASSESSEE, BY MJP SHOULD IN FACT RELATE TO THE REMAINING AMOUNT, AFTER THE PAYMENTS EFFECTED TO THE SUPPLIERS FOR THE GOODS SUPPLIED. THE ASSESSEE HAS ADMITTED THE FACT THAT BILLS RECEIVED BY THEM WERE AFTER DEDUCTING TDS, WCT AND PURC HASE OF SUPPLIES BY THE COMPANIES. THUS, THE ASSESSEE HAS WRONG LY RECORDED FULL AMOUNT OF PURCHASES TO ITS PROFIT AND LOSS ACCOUNT INCL UDING WCT EVEN THOUGH IT HAD RECEIVED THE NET AMOUNT. THE ASSES SEE COULD NOT PROVE CONCLUSIVELY THAT THE AMOUNT OF PURCHASES RECORD ED IN THE PROFIT AND LOSS ACCOUNT IS AUTHENTIC. THE LD. DR VEHEMENTLY PR AYED FOR SETTING ASIDE THE IMPUGNED ORDER AND RESTORING THE FINDIN GS OF THE ASSESSING OFFICER. 5. SHRI M.K. KULKARNI, ADVOCATE APPEARING ON BEHALF OF THE AS SESSEE VEHEMENTLY SUPPORTED THE FINDINGS OF COMMISSIONER OF INCOM E TAX (APPEALS) IN SETTING ASIDE THE REASSESSMENT PROCEEDINGS, AS WELL AS ON MERITS. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT, IN RESPECT OF 4 ITA NOS. 2075 & 2076/PN/2013, A.YS. 2006-07 & 2007-08 ASSESSMENT YEAR 2006-07, REASSESSMENT PROCEEDINGS HAV E BEEN INITIATED BEYOND THE PERIOD OF FOUR YEARS. THE ASSESSEE H AS FULLY AND TRULY DISCLOSED ALL MATERIAL FACTS NECESSARY FOR THE ASSESS MENT. A PERUSAL OF THE REASSESSMENT ORDER WOULD SHOW THAT THE ASSESSING OFFICER HAS NOT REFERRED ANY FRESH TANGIBLE MATERIAL FOR INITIA TING REASSESSMENT PROCEEDINGS. THE REASSESSMENT PROCEEDINGS ARE BASED ON THE AUDIT OBJECTIONS. IT IS A CASE WHERE THE ASSESSING OFFICER HAS ASSUMED JURISDICTION U/S. 147 ON THE BASIS OF CHANGE OF OP INION, WHICH IS NOT PERMISSIBLE UNDER LAW. THE LD. COUNSEL SUBMITTED THAT REASSESSMENT PROCEEDINGS CANNOT BE INITIATED MERELY ON THE OBJECTIONS RAISED BY AUDIT PARTY. IN SUPPORT OF HIS CONTENTIONS, HE PLACED RELIANCE ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF R EPLIKA PRESS PRIVATE LIMITED AND ANOTHER VS. CIT REPORTED AS 90 DTR (DEL) 250. THE LD. COUNSEL ALSO REFERRED TO THE DECISION OF HON'BLE SUPREM E COURT OF INDIA IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. REPO RTED AS 320 ITR 561 (SC) TO FORTIFY HIS SUBMISSIONS THAT REASSESSMENT PRO CEEDINGS ARE NOT PERMISSIBLE ON THE BASIS OF CHANGE OF OPINION. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF BOTH THE SIDES AND HAVE PERUSED THE ORDERS OF THE AUT HORITIES BELOW. WE HAVE ALSO CONSIDERED THE DECISIONS ON WHICH RELIANCE HA S BEEN PLACED BY THE LD. COUNSEL OF THE ASSESSEE. IT IS AN UNDISP UTED FACT THAT IN BOTH THE IMPUGNED ASSESSMENT YEARS, ORIGINAL ASSESSMEN T ORDERS WERE PASSED U/S. 143(3). IT IS FURTHER OBSERVED THAT REA SSESSMENT PROCEEDINGS IN RESPECT OF ASSESSMENT YEAR 2006-07 HAVE BEEN INITIATED BEYOND THE PERIOD OF 4 YEARS. THUS, FIRST PROVISO TO SEC TION 147 COMES INTO PLAY FOR THE ASSESSMENT YEAR 2006-07. THE MAIN CONTENTION OF THE ASSESSEE IS THAT REASSESSME NT PROCEEDINGS HAVE BEEN INITIATED ON THE BASIS OF CHANGE OF OPINION. ON THE OTHER HAND, THE CONTENTION OF THE DEPARTMENT IS, THA T THE ASSESSEE 5 ITA NOS. 2075 & 2076/PN/2013, A.YS. 2006-07 & 2007-08 HAD FURNISHED INACCURATE PARTICULARS, THEREFORE, THE ASSESS ING OFFICER HAS REASONS TO BELIEVE THAT THE INCOME OF THE ASSESS EE HAS ESCAPED ASSESSMENT. 7. THE ASSESSEE HAS PLACED ON RECORD A COPY OF NOTICE DATED 18-01-2012 U/S. 154/155 OF THE ACT AT PAGES 29 AND 30 OF THE PAPER BOOK. A PERUSAL OF THE NOTICE SHOWS THAT THE ASSESSEE HAD INITIALLY INITIATED PROCEEDINGS FOR RECTIFICATION ON THE BASIS OF THE OB JECTIONS RAISED BY THE AG AUDIT PARTY. THE RELEVANT EXTRACT OF THE NOTICE FOR RECTIFICATION READS AS UNDER: GIST OF RECTIFICATION PROPOSED:- THE A.G. AUDIT PARTY RAISED THE AUDIT OBJECTION IN YOUR CASE IS AS UNDER A SCRUTINY OF THE ASSESSMENT RECORDS OF THE ASSESSE E FOR A.Y.2007-08 REVEALED THAT THE ASSESSEE IN OCT 02, H AD ENTERED INTO AGREEMENT WITH M/S MAHARASHTRA JEEVAN PRADHIKARAN ( MJP), MUMBAI TO EXECUTE THE 'MALKAPUR WATER SUPPLY SCHEME, KARAD AT KARAD, SATARA FURTHER THE ASSESSEE AND THE MJP ENTERED INTO AGREE MENT WITH THE FOLLOWING 4 COMPANIES FOR THE SUPPLY OF VARIOUS MAT ERIALS AS IN ENUMERATED BELOW:- COMPANY FOR THE SUPPLY OF 1) M/S SAW PIPES LTD, DIST-MATHURA, UP PIPES 2) M/S TECHNOCRATS ENGINEERING AND CONSULTANT PUNE PUMPING MACHINERY 3) LANCO INDUSTRIES, CHENNAI PIPES 4) WATER TECH EQUIPMENT, PUNE MECHANICAL EQUIPMENT FOR WTP CLAUSE NO. 3 & 8 OF THE TRIPARTITE AGREEMENT DATED 05.01.2005, WITH M/S. SAW PIPES LTD., MATHURA (UP), STIPULATED THAT FOR T HE PIPES SUPPLIED BY THE SAID COMPANY AND THE ASSESSEE, MJP WOULD MAKE D IRECTLY TO THE SAID COMPANY AND THE ASSESSEE WOULD INCLUDE THE PAY MENT FOR PIPES IN ITS RA BILL TO BE PRESENTED TO MJP FURTHER IT IS NO TICED FROM THE SUBMISSION OF THE ASSESSEE DATED NIL THAT 'BILLS RECEIVED FROM MJP ARE RECEIVED THROUGH CHEQUES AFTER DEDUCTING IDS, WORK CONTACT T AX AND PAYMENT MADE FOR PURCHASES AGAINST THE TRIPARTITE AGREEMENT BETWEEN M/S MJP, THE ASSESSEE AND THE COMPANIES SUPPLYING MATERIALS AS ABOVE. THUS THE PAYMENT FOR THE PIPES WAS MADE BY M/S MJP DIRECTLY TO THE SAW PIPES (VIDE CLAUSE 3 & 8 OF THE TRIPARTITE AGREEMENT) AND THE ASSESSEE IN ITS OWN AFORESAID SUBMISSION STATED THA T BILLS RECEIVED BY HIM WERE AFTER DEDUCTING TDS, WCT AND PURCHASE OF S UPPLIES BY THE COMPANIES ENTERED INTO TRIPARTITE AGREEMENT. THEREF ORE THE ACT OF THE ASSESSEE OF DEDUCTING HIS P/L ACCOUNT AGAIN BY RS.8 9,59,904/- (INCLUDING WCT OF RS.2,65,669/-) ON ACCOUNT OF PURC HASE OF PIPES WAS THUS NOT IN ORDER. AS SUCH THE SAID EXPENSES OF RS .89,59,904/-(INCLUDING WCT OF RS.2,65,669/-) NEEDED TO BE DISALLOWED AND A DDED IN THE ASSESSED INCOME. 6 ITA NOS. 2075 & 2076/PN/2013, A.YS. 2006-07 & 2007-08 THE ASSESSING OFFICER DROPPED THE RECTIFICATION PROCEEDINGS AND PROCEEDED ON TO INITIATE REASSESSMENT PROCEEDINGS U/S. 1 48 R.W.S. 147 OF THE ACT. REASSESSMENT ORDER WAS PASSED ON 24-12- 2012 MAKING ADDITION OF RS.66,29,536/- IN THE ASSESSMENT YEAR 2006-07 AND RS.89,59,904/- IN THE ASSESSMENT YEAR 2007-08. ON PERU SAL OF THE ASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 147 FOR THE IMP UGNED ASSESSMENT YEARS, WE FIND, THAT THE REASONS GIVEN BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDERS ARE NOT HIS OWN BUT ARE THE OBJECTIONS RAISED BY THE AUDIT PARTY WHICH HAS BEEN REPRODUCED HERE-IN-A BOVE. 8. THE PROVISIONS OF SECTION 147 CLEARLY STATES THAT REAS SESSMENT PROCEEDINGS CAN BE INITIATED ONLY IF THE ASSESSING OFFICER HAS REASONS TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THUS, THE SECTION MANDATES THAT IT SHOULD BE THE BELIEF OF THE ASSESSING OFFICER THAT THE INCOME HAS ESCAPED ASSESSMENT. IT SHOU LD BE THE INDEPENDENT BELIEF OF THE ASSESSING OFFICER NOT THE BORROWED FROM OR INFLUENCED BY ANY OTHER AGENCY. IN THE PRESENT CASE, WE FIND THAT IT IS NOT THE BELIEF OF THE ASSESSING OFFICER, BUT THE OBJECTION RA ISED BY THE AG AUDIT PARTY THAT HAS TRIGGERED THE INITIATION OF REASS ESSMENT PROCEEDINGS. NO NEW TANGIBLE MATERIAL HAS COME TO THE N OTICE OF THE ASSESSING OFFICER. THUS, IN OUR CONSIDERED VIEW, REASSESSMEN T PROCEEDINGS HAVE BEEN INITIATED IN THE PRESENT CASE BY T HE ASSESSING OFFICER ON CHANGE OF OPINION. 9. THE EXPRESSION CHANGE OF OPINION IS NO LONGER RES INT EGRA. THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS. KELV INATOR OF INDIA LTD. REPORTED AS 320 ITR 561 (SC) HELD THAT THE CONCEPT O F CHANGE OF OPINION MUST BE TREATED AS AN IN-BUILT TEST TO CHECK ABUSE OF POWER BY ASSESSING OFFICER AND THAT THE REASONS MUST HAVE A LIV E LINK WITH 7 ITA NOS. 2075 & 2076/PN/2013, A.YS. 2006-07 & 2007-08 FORMATION OF BELIEF. THE RELEVANT EXTRACT OF THE DECISION IS RE PRODUCED HEREUNDER: 'HOWEVER, ONE NEEDS TO GIVE A SCHEMATIC INTERPRETAT ION TO THE WORDS REASON TO BELIEVE, FAILING WHICH SECTION 147 WOUL D GIVE ARBITRARY POWERS TO THE ASSESSING OFFICER TO REOPEN ASSESSMENTS ON T HE BASIS OF MERE CHANGE OF OPINION, WHICH CANNOT BE PER SE REASON T O REOPEN. ONE MUST ALSO KEEP IN MIND THE CONCEPTUAL DIFFERENCE BETWEEN POWER TO REVIEW AND POWER TO REASSESS. THE ASSESSING OFFICER HAS NO POW ER TO REVIEW; HE HAS THE POWER TO REASSESS, BUT THE REASSESSMENT HAS TO BE BASED ON FULFILMENT OF CERTAIN PRE-CONDITIONS AND IF THE CON CEPT OF CHANGE OF OPINION IS REMOVED AS CONTENDED ON BEHALF OF THE D EPARTMENT, THEN IN THE GARB OF REOPENING THE ASSESSMENT, REVIEW WOULD TAKE PLACE. ONE MUST TREAT THE CONCEPT OF CHANGE OF OPINION AS AN IN-BUILT TEST TO CHECK ABUSE OF POWER BY THE ASSESSING OFFICER. HENCE, AFTER 1-4- 1989, THE ASSESSING OFFICER HAS POWER TO REOPEN, PROVIDE D THERE IS TANGIBLE MATERIAL TO COME TO CONCLUSION THAT THER E IS ESCAPEMENT OF INCOME FROM ASSESSMENT. UNDER THE DIRECT TAX LAWS (AMENDMENT) ACT, 1987, THE PARLIAMENT NOT ONLY DELETED THE WORDS REASON TO BELIEVE BUT ALSO INSERTED THE WORD OPINION IN SECTION 147 . HOWEVER, ON RECEIPT OF REPRESENTATIONS FROM THE COMPANIES AGAINST OMISS ION OF THE WORDS REASON TO BELIEVE, THE PARLIAMENT REINTRODUCED TH E SAID EXPRESSION AND DELETED THE WORD OPINION ON THE GROUND THAT IT WO ULD VEST ARBITRARY POWERS IN THE ASSESSING OFFICER.' THE HONBLE APEX COURT IN THE CASE OF CIT VS. FORMER FIN ANCE REPORTED AS 264 ITR 566 (SC) AFFIRMING THE DECISION OF THE H ONBLE ALLAHABAD HIGH COURT IN FORAMER VS. CIT REPORTED AS 247 ITR 436 HAS HELD THAT REOPENING OF ASSESSMENT ON MERE CHANGE OF OPIN ION, IS BAD IN LAW. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF M.J. PHARMACEUTICALS LTD. VS. DCIT REPORTED AS 297 ITR 119 (B OM.) HELD THAT REASSESSMENT PROCEEDINGS BASED ON CHANGE OF OPINION IS NOT VA LID. 10. AS HAS BEEN POINTED OUT EARLIER THAT THE ORIGINAL ASS ESSMENT ORDERS WERE PASSED U/S. 143(3), THEREFORE, AT THE TIME OF P ASSING OF SCRUTINY ASSESSMENT ORDERS THE ASSESSING OFFICER HAD ALL T HE OCCASION TO PROBE AND INVESTIGATE THE TRANSACTIONS AND THEREAFTE R FORM AN OPINION. IT IS PRESUMED THAT AT THE TIME OF ORIGINAL ASSES SMENT PROCEEDINGS, THE ASSESSING OFFICER AFTER SATISFYING HIMSELF WIT H THE 8 ITA NOS. 2075 & 2076/PN/2013, A.YS. 2006-07 & 2007-08 EXPENSES CLAIMED BY THE ASSESSEE HAS ACCEPTED THE ACC OUNTING TREATMENT GIVEN FOR THE SUPPLY OF MATERIAL. THE PURPORTE D REASONS TO BELIEVE FOR INITIATING REASSESSMENT PROCEEDINGS ARE NOTHING BUT A MERE CHANGE OF OPINION. REASSESSMENT PROCEEDINGS ON THE BASIS O F CHANGE OF OPINION ARE NOT PERMISSIBLE UNDER THE PROVISIONS OF THE ACT . THE FULL BENCH OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KE LVINATOR OF INDIA LTD. REPORTED AS 256 ITR 1 HAS HELD: WHEN A REGULAR ORDER OF ASSESSMENT IS PASSED IN TE RMS OF THE SAID SUB- SECTION (3) OF SECTION 143, A PRESUMPTION CAN BE RA ISED THAT SUCH AN ORDER HAS BEEN PASSED ON APPLICATION OF MIND. IT IS WELL-KNOWN THAT A PRESUMPTION CAN ALSO BE RAISED TO THE EFFECT THAT I N TERMS OF CLAUSE (E) OF SECTION 114 OF THE INDIAN EVIDENCE ACT THE JUDICIAL AND OFFICIAL ACTS HAVE BEEN REGULARLY PERFORMED. IF IT BE HELD THAT AN ORD ER WHICH HAS BEEN PASSED PURPORTEDLY WITHOUT APPLICATION OF MIND WOUL D ITSELF CONFER JURISDICTION UPON THE ASSESSING OFFICER TO REOPEN T HE PROCEEDING WITHOUT ANYTHING FURTHER, THE SAME WOULD AMOUNT TO GIVING P REMIUM TO AN AUTHORITY EXERCISING QUASI-JUDICIAL FUNCTION TO TAK E BENEFIT OF ITS OWN WRONG. 11. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS . LUCAS TVS LTD. REPORTED AS 234 ITR 296 (MAD) HAS HELD THAT AN AUD IT OPINION IN REGARD TO THE APPLICATION OR INTERPRETATION OF LAW CANNOT BE TREATED BY THE INCOME TAX OFFICER AS INFORMATION FOR REOPENING U/S. 1 47 OF THE INCOME TAX ACT. THE VIEW TAKEN BY THE HON'BLE HIGH CO URT HAS BEEN AFFIRMED BY THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS. LUCAS TVS LTD. REPORTED AS 249 ITR 306 (SC). THE COMMISSIONER OF INCOME TAX (APPEALS) IN THE IMPUGNED ORDER HAS HELD THAT THE ASSESSING OFFICER REOPENED THE A SSESSMENT ON THE BASIS OF CHANGE OF OPINION. WE DO NOT FIND ANY INFIRMITY IN THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS). ACCORDIN GLY, WE DISMISS THE FIRST GROUND OF APPEAL OF THE REVENUE. 12. IN SO FAR AS SECOND GROUND RAISED BY THE REVENUE IN APPEAL ON MERITS, IT HAS BECOME ACADEMIC. ONCE, WE HAVE UPHELD THE FINDINGS OF 9 ITA NOS. 2075 & 2076/PN/2013, A.YS. 2006-07 & 2007-08 COMMISSIONER OF INCOME TAX (APPEALS) ON THE GROUND OF JU RISDICTION U/S. 147 R.W.S. 148 ARE CONCERNED. HOWEVER, AFTER CONSIDE RING THE SUBMISSIONS OF RIVAL SIDES AND EXAMINING THE ORDER OF FIRST APPELLATE AUTHORITY, WE CONCUR WITH THE WELL REASONED FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) ON MERITS AS WELL. 13. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DISMISS ED AND THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) ARE UPHELD. ORDER PRONOUNCED ON FRIDAY, THE 09 TH DAY OF OCTOBER, 2015. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 09 TH OCTOBER, 2015 RK *+,$-.'/'(- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-III, PUNE 4. ' / THE CIT-III, PUNE 5. !*+ %%,- , ,- , . /01 , / DR, ITAT, A BENCH, PUNE. 6. + 2 34 / GUARD FILE. // ! % // TRUE COPY// #5 / BY ORDER, %6 ,1 / PRIVATE SECRETARY, ,- , / ITAT, PUNE