DCIT, CHENNAI V. PVP Ventures Ltd., CHENNAI

ITA 2308/CHNY/2014

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8456 (ITAT-CHENNAI)
• Duration Of Justice: 7 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 14-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Business income; Depreciation; Business expenditure; Question of law; Difference of opinion; Unabsorbed depreciation; Change of opinion; Reassessment proceedings
• Section: 148; 37; 139; 264; 192; 48; 13; 153

Judgement Text

आयकर अपीलीय अिधकरण, ‘सी’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘C’ BENCH, CHENNAI Įी महावीर ͧसंह, उपाÚय¢ एवं Įी मनोज क ु मार अĒवाल, लेखा सदèय के सम¢ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENTAND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER आयकर अपील सं./ITA Nos.: 1707/CHNY/2013 & 2308/Chny/2014 िनधाᭅरण वषᭅ /Assessment Years: 2006-07 & 2004-05 The DCIT, Company Circle – V(2), Chennai – 34. v. M/s. PVP Ventures Ltd., (formerly M/s. SSI Ltd.), New No.34, Old No.54, Thirumalai Road, T.Nagar, Chennai – 600 017. PAN: AAACS 3101P (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/Appellant by : Shri M. Rajan, CIT ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri B. Ramakrishnan, FCA स ु नवाई कȧ तारȣख/Date of Hearing : 14.02.2022 घोषणा कȧ तारȣख/Date of Pronouncement : 22.02.2022 आदेश /O R D E R PER MAHAVIR SINGH, VP: The appeal by the Revenue in ITA No.1707/Chny/2014 is arising out of order of Commissioner of Income Tax (Appeals)-VI, Chennai in ITA No.444/10-11, vide order dated 26.04.2013. The assessment was framed by the ACIT, Company Circle VI(1), Chennai for the relevant assessment year 2006-07 u/s.143(3) of 2 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 the Income Tax Act, 1961 (hereinafter the ‘Act’) vide order dated 30.12.2008. 2. The only issue in this appeal of Revenue is as regards to the order of CIT(A) deleting the addition made by the AO of non- compete fee of Rs.3 crore and royalty of Rs.2 lakhs as ‘income from other sources’. For this, Revenue has filed original grounds along with Form 36 and subsequently, these grounds were revised and have taken the following grounds:- 2.1 The Ld. CIT(A) erred in deleting the treatment of royalty of Rs.2 Lakh as ‘income from other sources’. 2.2 The Ld. CIT(A) erred in holding that royalties are taxable under the head of Income from Business or Profession. By virtue of section 28(iv) royalties is not included ds 1ncome chargeable in Profit & Gains or Business or Profession. 2.3 The Ld. CIT(A) ought to have considered the fact that treating royalty as Business Income is not in consonance with the section 28(iv) of the Act. 2.4 The Ld. CIT(A) erred in deleting the disallowance made on expenses and depreciation. 2.5 The Ld. CIT(A) ought to have noted that the assessee company has received nor compete fee for not carrying on any trading activity. 2.6 The Ld.CI(A) has failed to note that assessee company’s subsidiary are separate legal entity and that in the absence of any business activity by the assessee company it is incorrect to allow business expenses and depreciation. 3 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 2.7 The Ld. CIT(A) ought to have note that one of the conditions for allowance of depreciation is that the asset should be used for the purpose of a business or profession carried on the assessee. The block of assets for which depreciation has been claimed shows that these assets were not for the purpose of the real estate business which was yet to commence, which the Ld.CIT(A) failed to consider. 3. Brief facts are that the assessee, a resident company engaged in the business of investments. During the course of assessment proceedings, the AO noticed from the profit & loss account that income from operation was declared at ‘Nil’. The AO required the assessee to explain as to why the expenses claimed in the profit & loss account be not disallowed, as there was no business activity carried out by the assessee during the year. The assessee replied that it had earned business income of Rs.3.02 crores and the same was grouped under the head ‘miscellaneous income’. The assessee detailed out the income under miscellaneous head as under:- Non-compete Fee - 3,00,00,000 Trade mark royalty - 2,00,000 The assessee replied that it had abandoned software business altogether and sold all shares of Aptech Ltd. The AO in view of this observed that there is no business activity during the year and even the income is grouped under the head ‘income from other sources’ in the profit & loss account. Therefore, he reached to a conclusion that there is no business income. According to the AO, 4 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 the assessee has debited huge expenses and claimed the same in its P&L account against the above income. The AO disallowed the claim of business loss of Rs.8,93,19,921/- and also treated the business income declared by assessee on account of non-compete fee and royalty amounting to Rs.3.02 crores as ‘income from other sources’. The AO also noted that as the assessee failed to furnish details of expenditure, he restricted the expenditure at 5% as expenditure for earning of income. Against the order of AO, the assessee preferred appeal before CIT(A). 4. The CIT(A) after going through the observations of the AO and submissions of the assessee noted that the provisions of section 28(va) & 28(iv) of the Act are very clear and the receipts of non- compete fee and royalty are clearly brought under the category of business receipt. According to him, by virtue of specially covering the said receipts u/s.28(va) & 28(iv) of the Act, the same was held to be as business receipt. Accordingly, CIT(A) treated the assessee’s receipt from non-compete and royalty as business income and allowed the claim of business expenditure and unabsorbed depreciation by observing in para 11 as under:- “11. I had gone through the rival positions. It is to be noted here that the assessee is already into the real estate business through its subsidiaries and also has taken over and merged an entity BREAD who owns a large chunk 5 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 of land in an extent of Ac.70. Such a large project takes time to materialize and it cannot be stated that the assessee has discontinued the business. Moreover, in the earlier ground, the assessee’s receipts from Non Compete fee and Royalty were held to be Business Incomes under the provisions of S.28(va) and (iv). Further, the AO himself had accepted the pleas of the appellant to set off unabsorbed depreciation vide his order u/s.154 dated 22.11.2009. Thus, it cannot be stated that the assessee has discontinued the business and it is incorrect to disallow business expenditure and current depreciation. Hence, the arguments of the AR are acceptable for the reasoning above and the incomes offered be treated as ‘business income’ and allow in full of business expenditure and current depreciation. Thus, ground Nos.6,7 & 9 are allowed.” Aggrieved, Revenue is in appeal before the Tribunal. 5. We have heard rival contentions and gone through facts and circumstances of the case. Before us, the ld.counsel for the assessee as well as ld. CIT-DR, fairly conceded the position that non-compete fee held by CIT(A) as business income is not under challenge. The ld.CIT-DR stated that the only challenge is deletion of treatment of royalty of Rs.2 lakhs as business income as against treatment given by AO as ‘income from other sources’. Since the Revenue has not challenged the issue of non-compete fee whether this is business income or income from other sources, we need not to adjudicate the same. However, we are clear that non-compete fee is a receipt falling under the provision of section 28(iv) of the Act. As regards to royalty, we noted that the assessee is already in the business of real estate through its subsidiary and also has 6 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 taken over a merged entity Buckingham Real Estate and Asset Developers. The assessee found that there is substantial scope in residential housing segment and thereby identified a chunk of land available under the above said company, thereby it had started the process of acquiring and with the approval of Hon’ble High Court, the entity called Buckingham Real Estate and Asset Developers was merged with the assessee. This brought into a new line of business in real estate and company got merged vide order dated May 2006 as proposed in January, 2006. We noted from the facts that this company after merging with Buckingham Real Estate and Asset Developers is in synergy with its real estate holding control directly or indirectly through its subsidiaries. By this process, the assessee company has initiated steps for development of real estate project on the land parcel of 70 acres. In such facts, the Hon’ble Supreme Court in the case of CIT vs. Sarabhai Management Corporation Ltd., (1991) 192 ITR 151 and the Hon’ble Gujarat High Court in the case of Western India Sea Food (P) Ltd., (1993) 199 ITR 777 has considered the exactly identical facts. The Hon’ble Supreme Court in the case of Sarabhai Management Corporation Ltd., supra, held as under:- 2. Dr. Gauri Shankar, learned Counsel for the Union of India, vehemently contends that the finding arrived at by the Tribunal was a finding of fact. He refers to a number of decisions of this Court as well as of High Courts to 7 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 the effect that, where a finding of fact is given by the Tribunal, the High Court, in its advisory jurisdiction, will not interfere with it unless it is a case of no evidence or one of misdirection in law or one of a conclusion being reached which no reasonable man would arrive at on the proved facts. There can be no quarrel with the proposition put forward by Dr. Gauri Shankar. However, the High Court has pointed out rightly, in our opinion, that, in this case, the Tribunal has proceeded on a misapprehension regarding the nature of the assessee's business. It has analysed the various component activities of the assessee's business and pointed out that two categories of the activities of the business had been carried on during the previous year in question. The assessee had purchased a property ; it was on the look out for persons to whom it could be let out; it had been able to get a customer ; and it had carried out repairs, rewiring, installation of lift and other steps in the process of getting the premises converted from a residential house into a business and storage accommodation conforming to the requirements of the customer. Even if, as submitted by Dr. Gauri Shankar, the first category of activity referred to by the High Court, viz., the acquisition of a property for being let out can be said to be only a preparatory stage (analogous to the acquisition of buildings, plant and machinery in a manufacturing business), the subsequent activities certainly constitute activities in the course of the carrying on of the assessee's business. It would not be correct, as rightly pointed out by the High Court, to treat the assessee as having commenced its business only when the licensee or lessee occupied the premises or started paying rent. In these circumstances, we are of the opinion that the High Court was right in interfering with the finding of the Appellate Tribunal which was based on a misdirection in law. Further, the Hon’ble Gujarat High Court in the case of Western India Sea Food (P) Ltd., supra, held as under:- 10. We may at this stage refer to another judgment of this court in Hotel Alankar v. CIT [1982] 133 ITR 866. In that case, the assessee was to commence a hotel business and was to start a boarding and lodging house. One of the partners of the firm placed his building at the disposal of the firm as his capital contribution. Expenses amounting to Rs. 45,708 were incurred in installing lights, making the building more ventilated, etc. The hotel was formally inaugurated in February, 1968. The question was 8 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 whether the expenses incurred in February, 1968, can be considered to be business expenses. For answering this question, the Division Bench of this court, speaking through B. K. Mehta J., observed as under (headnote) : "When a business is established and is ready to commence business, then it can be said of that business that it is set up. The words 'ready to commence' would not necessarily mean that all the integrated activities are fully carried out and/or wholly completed. The requirement is also complied with in a given case where an assessee had undertaken the first of the kind of integrated activities which the business is overall comprised of. The question whether a business has been set up or not is always a question of fact which has to be decided on the facts and in the circumstances of each case." 11. The following observations of Chagla C. J. in Western India Vegetable Products' case [1954] 26 ITR 151, 158 (Bom) were quoted with approval : "That is why it is important to consider whether the expression used in the Indian statute for setting up a business is different from the expression Mr. Justice Rowlatt was considering, viz., 'commencing of the business'. It seems to us that the expression 'setting up' means, as is defined in the Oxford English Dictionary, 'to place on foot' or to establish', and in contradistinction to 'commence'. The distinction is this that when a business is established and is ready to commence business then it can be said of that business that it is set up. But before it is ready to commence business it is not set up. But there may be an interregnum, there may be an interval between a business which is set up and a business which is commenced and all expenses incurred after the setting up of the business and before commencement of the business, all expenses during the interregnum, would be permissible deductions under section 10(2)." 12. In the light of the aforesaid settled legal position, therefore, it is easy to visualised that for the setting up of the business of processing marine products, the assessee, during the assessment year in question, had to make all preparations and had also to provide on the spot the necessary infrastructure. Even conceding that entering into advance contracts with fishermen for collection of fish during the monsoon season may not be taken as a first step towards setting up of business, at least from August 15, 1970, when the assessee acquired a godown where the processing of marine products could start when fish became available after the monsoon, it can 9 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 be said that that was the starting point of the setting up of the business of processing marine products. Actual arrival of fish later on would not postpone the setting up of such business. The Tribunal was, therefore, right in concurring with the view of the Appellate Assistant Commissioner that the expenditure incurred by the assessee after August 15, 1970, and before October 6, 1970, when collection of fish was to actually start, can be treated to be business expenditure and would get covered under section 37 of the Act. 5.1 In the present case before us, from the facts noted above we are of the view that the non-compete fee has rightly been declared by assessee as business income u/s.28(iv) of the Act and declared as income chargeable in profits & gains of business or profession. Similarly, royalty also held by CIT(A) as business receipt is as per the facts of the case and stated position of law because the assessee is engaged in the business. Hence, we find no infirmity in the order of CIT(A) and the same is confirmed. The appeal of the Revenue is dismissed. ITA 2308/CHNY/2014 6. This appeal by the Revenue in ITA No.2308/Chny/2014 is arising out of order of Commissioner of Income Tax (Appeals)- V(i/c), Chennai in ITA No.709/13-14(A)-V, vide order dated 07.05.2014. The original assessment was framed by ACIT, Company Circle V(2), Chennai u/s.143(3) of the Act vide order dated 18.12.2006 for the relevant assessment year 2004-05. 10 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 Subsequent, the re-assessment was framed by the ACIT, Company Circle V(2), Chennai u/s.143(3) r.w.s. 147 of the Act, vide order dated 28.12.2011 for the relevant assessment year 2004-05 (the impugned year and assessment order before us). 7. The only issue in this appeal of Revenue is against the order of CIT(A) in quashing the reassessment framed by applying the first proviso to section 147 of the Act. For this, the Revenue has raised following Ground Nos.2.1 to 2.6:- 2.1The ld CIT(A) erred in concluding that the reassessment proceedings were based on change of opinion. 2.2 The ld CIT(A) ought to have appreciated the fact that in Form 3CEB — Col.9, the assessee had not mentioned about any transaction on intangible property during the relevant year. Thus, the assessee failed to furnish complete particulars in support of its claim and hence, the reopening of assessment beyond four years is within the ambit of sec. 147 of the Act. 2.3 The ld CIT(A) ought to have followed the decision of hon’ble Supreme Court in the case of Phoolchand Bajrang Lal v. ITO - 203 ITR 456, wherein it was held that, “where transaction itself on basis of subsequent information, is found to be a bogus transaction, mere disclosure of that transaction at time of original assessment proceedings, cannot be said to be a disclosure of ‘true' and ‘full’ facts in case and AO would have jurisdiction to reopen concluded assessment in such a case.” 2.4 The ld CIT(A) erred in concluding that since depreciation was allowed on the opening WDV of the intangible asset, the A.O should have allowed depreciation even on the addition made to such asset during the relevant previous year. 2.5 The ld CIT(A) ought to have appreciated the fact that the Assessing Officer had not doubted the genuineness of opening WDV of intangible 11 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 asset and the subject matter of reassessment proceedings was only the genuineness of additions claimed to be made to the intangible assets during the year. 2.6 The ld CIT(A) ought to have appreciated the fact that even during the reassessment proceedings, in spite of the AO’s request and sufficient opportunities granted for production of evidence in support of addition claimed to be made to intangible assets during the relevant previous year, the assessee did not produce the same. 8. We have heard rival contentions and gone through facts and circumstances of the case. Brief facts are that the assessee company filed its return of income for assessment year 2004-05 on 01.11.2004. This return of income was processed u/s.143(1) of the Act and subsequently, the case was taken up for scrutiny assessment and originally assessment was completed u/s.143(3) of the Act on 18.12.2006 after examining the documents and details filed on the basis of revised loss declared by the assessee. Subsequently, the ACIT, Company Circle V(2) has issued notice u/s.148 of the Act dated 01.10.2009, which was received by assessee on 28.10.2009. The assessee vide a letter stated the AO to treat the original return filed as return filed in response to notice u/s.148 of the Act and also requested for reasons recorded for reopening of assessment for assessment year 2004-05. The reasons recorded by the AO were supplied by ACIT vide letter dated 21.11.2011 and the reasons recorded reads as under:- 12 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 “A perusal of the records shows that the assessee company has claimed depreciation in respect of ‘Technical know-how’ and IPR to the tune of Rs.91,34,97,575/-. On verification, it is found that the value of Technical knowhow and IPR has not been furnished. In the absence of valuation with regard to Technical knowhow and IPR, the depreciation allowed on the above amount of Rs.91,34,97,575/- is found to be in excess.” The AO framed the reassessment and disallowed the claim of depreciation amounting to Rs.76,75,82,599/-. Aggrieved, assessee preferred appeal before CIT(A). 9. The CIT(A) after considering submissions of the assessee and after going through the reasons recorded, noted that original assessment was completed u/s.143(3) of the Act and notice u/s.148 for reopening of assessment dated 01.10.2009 for the assessment year 2004-05 is beyond 4 years and in the reasons there is no mention of any failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment. The CIT(A) in view of the above, considered the reopening has change of opinion as well as falling under the first proviso to section 147 of the Act and thereby quashed the reassessment by observing in para 7 as under:- “7. Considering all the case laws referred by the Appellant and the decision of the Madras High Court in the case of Sterlite Industries (India) Ltd. Vs Assistant Commissioner of Income-tax, the Assessing Officer is not justified in reopening the assessment u/s 148 as it tantamount to change of opinion “the very act of reopening itself would not have any validity as such. Over and above even on merits considering the depreciation statement 13 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 incorporated in his own assessment order vide para No.12 where the Assessing Officer himself has allowed depreciation on knowhow at 25% on Written Down Value as on 01.04.2003 and the same was allowed. Nowhere in the assessment order, the Assessing Officer doubted the addition made to the intangible assets of knowhow and IPR during the year at Rs.91,34,97,576/-. The Assessing Officer has himself accepted the addition made to the intangible asset i.e. knowhow and IPR during the previous year relevant to the assessment year under consideration. Once the Assessing Officer has allowed depreciation on the Written Down Value of intangible asset at Rs. 120,30,41,094/- at the rate of 25% which works out to Rs.30,07,60,273/-, the Assessing Officer should have allowed depreciation at 25% also on the additional know how brought in during the previous year relevant to the AY under consideration at Rs.91,34,97,576/-. Thus there is total inconsistence in the decision taken by Assessing Officer at allowing the depreciation on the same asset on its WDV and not allowing the claim of depreciation of the appellant on the addition made to the knowhow during the year under consideration. If the Assessing Officer has doubted the purchase of additional knowhow during the year at Rs.91,34,97,576/-he should have disallowed the entire value of additions brought in on account of knowhow and IPR along with the depreciation claimed on the additional knowhow added during the year. The Assessing Officer has accepted the purchase of additional knowhow at Rs.91,34,97,576/- and disallowed only the claim of the depreciation on the additional know how brought in during the year. Once the depreciation on knowhow has been allowed at 25% on Written Down Value of knowhow and IPR, the Assessing Officer should have allowed the claim of the appellant of depreciation at 25% on the additions made to the knowhow and IPR at Rs.91,34,97,576/-. Therefore, the Assessing is directed to allow the depreciation claim of the appellant on the additional knowhow purchased during the year at 25% on Rs.91,34,97,576/- which works out to Rs.22,84,92,102/- instead of the claim made by the appellant at Rs.37,12,87,277/-. This ground of appeal is allowed partly. Aggrieved, now Revenue is in appeal before the Tribunal. 10. After going through the case records and arguments of both the sides, we noted that undisputed fact is that the assessee has 14 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 declared all the material facts in regard to depreciation in respect of technical know-how and IPR and claim of loss during the course of original assessment proceedings. During the course of original assessment proceedings, the AO in his assessment order vide para 12 allowed the claim of depreciation on know-how at 25% of the written down value as on 01.04.2003. In the original assessment order, the AO has not doubted the addition made to the intangible assets of know-how and IPR for an amount of Rs.91,34,97,576/- during the year under consideration. Even in the reasons recorded, the AO has not pointed out any failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment. Once assessment is framed u/s.143(3) of the Act originally for assessment year 2004-05 and reopening notice dated 01.10.2009, which is beyond 4 years and there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment, the reopening cannot be held to be valid. This proposition is supported by the decision of Hon’ble Supreme Court in the case of CIT vs. Foramer France, (2003) 264 ITR 566, wherein the Supreme Court has affirmed the decision of Hon’ble Allahabad High Court in the case of Foramer France vs. CIT, (2001) 247 ITR 436. The decision of Hon’ble Allahabad High 15 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 Court, affirmed by Hon’ble Supreme Court, in the case of Foramer France, supra is as under:- 14. Having heard learned counsel for the parties, we are of the view that these petitions deserve to be allowed. 15. It may be mentioned that a new Section substituted Section 147 of the Income-tax Act by the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1, 1989. The relevant part of the new Section 147 is as follows : "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 of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this Section and in sections 148 to 153 referred to as the relevant assessment year) : Provided that where an assessment under Sub-section (3) of Section 143 or this Section has been made for the relevant assessment year, no action shall be taken under this Section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason 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 Section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year." 16. This new Section has made a radical departure from the original Section 147 inasmuch as clauses (a) and (b) of the original Section 147 have been deleted and a new proviso added to Section 147. 17. In Rakesh Aggarwal v. Asst. CIT (1997] 225 ITR 496, the Delhi High Court held that in view of the proviso to Section 147 notice for reassessment under Section 147/148 should only be issued in accordance with the new Section 147, and where the original assessment had been made under Section 143(3) then in view of the proviso to Section 147, the notice under section 148 would be illegal if issued more than four years after the end of the 16 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 relevant assessment year. The same view was taken by the Gujarat High Court in Shree Tharad Jain Yuvak Mandal v. ITO [2000] 242 ITR 612. 18. In our opinion, we have to see the law prevailing on the date of issue of the notice under Section 148, i.e., November 20, 1998. Admittedly, by that date, the new Section 147 has come into force and, hence, in our opinion, it is the new Section 147 which will apply to the facts of the present case. In the present case, there was admittedly no failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for the assessment. Hence, the proviso to the new Section 147 squarely applies, and the impugned notices were barred by limitation mentioned in the proviso.” 10.1 Furthermore, the Hon’ble Madras High Court in the case of CIT vs. RPG Transmissions Ltd., [2014] 48 taxmann.com 57, held as under:- “22. We find from the reasons set out in the assessment orders that the assessee has explained and disclosed the entire facts which would constitute a full disclosure and, therefore, we have no hesitation to hold that the reopening of assessment is barred by the proviso to section 147. Further, the facts which emerge from the assessment order as well as the order of Commissioner of Income-tax(Appeals) are well founded and in terms of the principles laid down by the apex court. For the aforesaid reasons, we find that the Tribunal has correctly appreciated the facts in holding that the reopening of the assessment orders are barred by limitation. We find that the Commissioner of Income-tax (Appeals) as well as the Tribunal has concurrently held from the facts that the proviso to section 147 would not apply to the facts of this case and since it is a finding of fact that too which is essentially based on the principles which are gathered from the judgments referred to above, we find that the Assessing Officer has departed from the said principles in arriving at a conclusion that the proviso to section 147 would apply in the instant case. We see no reason to deviate from the finding of fact and, hence, the appeal of the Revenue fails on this ground. Therefore, the first part of the substantial question of law No. 1 in T. C. (A.) Nos. 310 to 312 of 2007 with regard to the invocation of extended period of time under the proviso to section 147 is answered in the affirmative and in favour of the assessee.” 11. In view of the above facts and circumstance of case law of Hon’ble Supreme Court in the case of M/s. Foramer France and 17 I.T.A. Nos.1707/Chny/2013 & 2308/Chny/2014 Jurisdictional High Court in the case of M/s. RPG Transmissions Ltd., supra, we are of the view that there is no whisper in the reasons recorded that there is any failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment and the assessment was framed u/s.143(3) of the Act and reopening beyond 4 years which is against the provisions of the Act. Hence, we find no infirmity in the order of CIT(A) and the same is confirmed. This appeal of the Revenue is dismissed. 9. In the result, both the appeals filed by the Revenue are dismissed. Order pronounced in the court on 22 nd February, 2022 at Chennai. Sd/- Sd/- (मनोज कुमार अᮕवाल) (MANOJ KUMAR AGGARWAL) लेखा सद᭭य /ACCOUNTANT MEMBER (महावीर ᳲसह ) (MAHAVIR SINGH) उपा᭟यᭃ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 22 nd February, 2022 RSR आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ (अपील)/CIT(A) 4. आयकर आयुᲦ /CIT 5. िवभागीय ᮧितिनिध/DR 6. गाडᭅ फाईल/GF.