KORES INTERNATIONAL (P) LTD, MUMBAI V. ACIT CEN CIR 41, MUMBAI

ITA 2514/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8874 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 09-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 15-04-2014
• Court: TRIBUNAL
• Department Lawyers: PURUSHOTTOM KUMAR
• Keywords: Reopening of assessment; Tangible material; Difference of opinion; Change of opinion
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI RAVISH SOOD (JM) I.T.A. NO. 2514 /MUM/20 14 (ASSESSMENT YEAR 20 08 - 09 ) KORES INTERNATIONAL(P)LTD. 202, ASHFORD CHAMBERS LADY JAMSHEDJI ROAD MAHIM WEST MUMBAI - 400 0 16. VS. ACIT, CENTRAL CIRCLE 41 MUMBAI. ( APPELLANT ) ( RESPONDENT ) PAN NO . AAACK2399F ASSESSEE BY SHRI MANISH JAIN DEPARTMENT BY S HRI PURUSHOTTOM KUMAR DATE OF HEARING 3 .1 . 201 7 DATE OF PRONOUNCEMENT 3 . 1 . 201 7 O R D E R PER B.R. BASKARA N (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 30 - 01 - 2014 PASSED BY LD CIT(A) - 38, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2008 - 09. THE ASSESSEE IS CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENT AND ALSO DENIAL O F SET OFF OF BROUGHT FORWARD LOSS PERTAINING TO AY 2006 - 07. 2. THE ASSESSMENT IN THE HANDS OF THE ASSESSEE FOR AY 2008 - 09 WAS COMPLETED U/S 143(3) OF THE ACT ON 30 - 12 - 2010 BY GRANTING SET OFF OF BROUGHT FORWARD LOSS OF ASSESSMENT YEAR 2006 - 07. LATER TH E AO NOTICED THAT THE BROUGHT FORWARD LOSS PERTAINING TO ASSESSMENT YEAR 2006 - 07 COULD BE SET OFF AS PER THE PROVISIONS OF SEC.80 OF THE ACT, SINCE THE ASSESSEE HAD FILED RETURN OF INCOME OF AY 2006 - 07 BEYOND THE DUE DATE PRESCRIBED U/S 139(1) OF THE ACT. HE ALSO NOTICED THAT THIS FACT WAS SPECIFICALLY MENTIONED IN THE ASSESSMENT ORDER PASSED FOR AY 2006 - 07. HENCE THE AO TOOK THE VIEW THAT THERE WAS UNDERASSESSMENT OF THE INCOME OF THE YEAR UNDER CONSIDERATION. ACCORDINGLY HE REOPENED THE ASSESSMENT BY KORES INTERNATIONAL P. LTD. 2 I SSUING NOTICE U/S 148 OF THE ACT ON 07 - 06 - 2011 IN ORDER TO DISALLOW THE CLAIM OF SET OFF OF BROUGHT FORWARD LOSS PERTAINING TO AY 2006 - 07 AND ACCORDINGLY COMPLETED THE ASSESSMENT. THE LD CIT(A) ALSO CONFIRMED THE SAME. 3. THE ASSESSEE HAS CHALLENGED TH E VALIDITY OF REOPENING OF ASSESSMENT FOR THE FIRST TIME BEFORE THE TRIBUNAL. THE LD A.R SUBMITTED THAT THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY NEW TANGIBLE MATERIAL AND HE HAS ONLY RE - APPRECIATED THE MATERIAL ALREADY AVAILABLE ON RECORD. HE SUBMITTED THAT THE ASSESSING OFFICER HAS ACCEPTED THE CLAIM OF SET OFF OF BROUGHT FORWARD LOSS IN THE ORIGINAL ASSESSMENT PROCEEDING AND HE HAS REOPENED THE ASSESSMENT ON CHANGE OF OPINION. 4. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE AO HAS REOPEN ED THE ASSESSMENT TO APPLY CORRECT PROVISIONS OF LAW AND IT CANNOT BE A CASE OF CHANGE OF OPINION. 5. WE HAVE HEARD RIVAL CONTENTIONS ON THIS ISSUE. THE ASSESSMENT HAS BEEN REOPENED WITHIN FOUR YEARS FROM THE END OF THE ASSESSMENT YEAR UNDER CONSIDE RATION. AS SUBMITTED LD D.R, WE NOTICE THAT THE AO HAS REOPENED THE ASSESSMENT ONLY TO APPLY CORRECT PROVISIONS OF LAW. THE QUESTION OF FORMING AN OPINION ON LEGAL PROVISIONS SHALL NOT ARISE WHEN THE PROVISIONS OF VERY CLEAR AND HENCE THE QUESTION OF CHA NGE OF OPINION ALSO DOES NOT ARISE IN THIS CASE. IN OUR VIEW, THE EXISTENCE OF NEW MATERIAL ALSO NOT REQUIRED FOR APPLYING CORRECT PROVISIONS OF LAW. IT IS WELL SETTLED PROPOSITION THAT THERE IS NO ESTOPPEL AGAINST LAW. ACCORDINGLY WE DO NOT FIND MERIT IN ANY OF THE CONTENTIONS URGED BY THE ASSESSEE. ACCORDINGLY WE UPHOLD THE VALIDITY OF REOPENING OF ASSESSMENT. 6. ON MERITS, WE NOTICE THAT THE TAX AUTHORITIES HAVE APPLIED THE CORRECT PROVISIONS OF LAW (SEC. 139(3) R.W.S. 80), WHICH DEBARS CARRY FORW ARD AND SET OFF KORES INTERNATIONAL P. LTD. 3 LOSSES IF THE RETURN OF INCOME IS NOT FILED WITHIN THE PERIOD PRESCRIBED U/S 139(3) R.W.S. 139(1) OF THE ACT. SINCE THE RETURN OF INCOME OF AY 2006 - 07 HAS NOT BEEN FILED WITHIN THE PERIOD PRESCRIBED U/S 139(3) R.W.S. 139(1) OF THE ACT, THE QUESTION OF ALLOWING SET OFF OF THE LOSS OF THAT YEAR DOES NOT ARISE. ACCORDINGLY WE UPHOLD THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE ALSO. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT O N 3 . 1 .201 7. SD/ - SD/ - (RAVISH SOOD ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 3 / 1 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. T HE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI