Khandesh Builders Ltd., V. Deputy Commissioner of Income-tax,

ITA 268/PUN/2015

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 6403 (ITAT-PUNE)
• Duration Of Justice: 7 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 15-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Speculation loss; Difference of opinion; Deemed dividend; Competent authority; Assessment record; Reason to believe; Change of opinion; Reassessment proceedings; Set aside
• Section: 148; 154; 11; 143(3); 244A; 2(22)(e)

Judgement Text

आयकर अपीलीय अिधकरण “ए” ᭠यायपीठ पुणे मᱶ । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI PARTHA SARATHI CHAUDHURY, JM AND DR. DIPAK P. RIPOTE, AM आयकर अपील सं. / ITA No.268/PUN/2015 िनधाᭅरण वषᭅ / Assessment Year : 2008-09 Khandesh Builders Ltd., 7, Shivaji Nagar, Jalgaon – 425 001. PAN: AAACK 8222 H .......अपीलाथᱮ / Appellant बनाम / V/s. The Dy.Commissioner of Income Tax, Circle-1, Jalgaon. ......ᮧ᭜यथᱮ / Respondent Revenue by : Shri Deepak Garg & Shri S.P. Walimbe Assessee by : Shri Sunil Ganoo सुनवाई कᳱ तारीख / Date of Hearing : 28.02.2022 घोषणा कᳱ तारीख / Date of Pronouncement : 21.03.2022 आदेश / ORDER PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by the Assessee directed against the order of ld.Commissioner of Income Tax(Appeals)-2 [ld.CIT(A)], Nashik, Appeal No.Nsk/CIT(A)-2/1799/13-14 dated 13.01.2015 for the Assessment Year 2008-09. 2. The Assessee raised following grounds of appeal: “1) In the facts, circumstances & position of law learned CIT Appeals-II, Nashik erred in not annulling re-assessment order in view of the decision of Hon. Delhi High Court in the case of Atma Ram Properties Pvt. Ltd., V/s. Dy. CIT reported in (2012) 343 ITR 143 having the identical facts. ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 2 2) In the facts, circumstances & position of law learned CIT Appeals-II, Nashik erred in not annulling the re-assessment order in view of the fact that no specific speaking order was passed by the Assessing Officer on the objections raised by the appellant on reasons recorded for issue of notice U/s.148 in view of the decision of Hon. Supreme Court in the case of GKN Driveshafts V/s. CIT reported in (2003) 259 ITR 19. And in view of decision of jurisdictional Bombay High Court in the case of Allana Cold Storage Ltd. V/s. ITO & others reported in (2006) 287 ITR 1. 3) In the facts, circumstances & position of law learned CIT Appeals-II, Nashik erred in not annulling the re-assessment order being based on mere change of opinion on the same set of evidence on record. 4) In the facts, circumstances & position of law learned CIT Appeal-II, Nashik erred in not annulling the re-assessment order. 5) In the facts, circumstances & position of law learned CIT Appeals-II, Nashik erred in arriving at the fact that appellant had not furnished the information of share holding of its subsidiary companies. 6) In the facts, circumstances & position of law learned CIT Appeals-II, Nashik erred in holding that appellant company has not disclosed transactions with related parties & further holding that appellant company has not brought to the knowledge of A.O. that the transactions with related parties attracts provisions of section 2(22)(e) of I.T.Act, 1961. 7) In the facts, circumstances & position of law learned CIT Appeals-II, Nashik erred in holding that the original assessment was completed by the Assessing Officer in the routine manner. 8) In the facts, circumstances & position of law learned CIT Appeals-II, Nashik erred in confirming initiation of the reassessment proceedings for reasons recorded by the Assessing Officer for the year under appeal. 9) In the facts, circumstances & position of law learned CIT Appeals-II, Nashik erred in confirming the amount of Rs.1,34,39,587/- as deemed dividend U/s.2(22)(e) on account of amount received by appellant company from its subsidiary company for the purpose of business of holding appellant company & appellant company is having a running account with its subsidiary company viz. J.M. Cotton Ginning & Pressing Co. ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 3 Pvt. Ltd. & the credit amounts are utilized by the appellant company for its business & for discharging its trading liabilities. 10) In the facts, circumstances & position of law learned CIT Appeals-II, Nashik erred in holding that provisions of section 234B, 244A & 234D are applicable in the appellant’s case as the demand has arisen as a result of reassessment U/s.147 of the Act for the first time & the refund has been issued to the appellant. 11) In the facts, circumstances & in view of admission of appellant’s writ petition by jurisdictional Bombay High Court learned CIT Appeals-II, Nashik erred in confirming and disallowing carried forward of speculation loss of Rs.26,86,97,483/- pertaining to the assessment year 2001-2002 to 2003-2004. 12) Appellant craves leave to add, alter, amend, or substitute to the above grounds of appeal at the time of hearing.” 3. At the very outset, the facts of the case are mentioned hereunder: In this case, the appellant assessee company filed e- return of income for the A.Y. 2008-09 on 29.09.2008 declaring income of Rs.Nil. The Assessment Order under section 143(3) of the Act was passed on 22.12.2010, determining total income at Rs.Nil and tax liability as per MAT provision of the Act. Subsequently, an order under section 154 of the Act was passed on 07.08.2012 degerming the total income at Rs.21,19,863/-, as mentioned in the assessment order passed under section 143(3) r.w.s 147 of the Act dated 25.03.2014. Notice under section 148 of the Act was issued on 29.10.2012 after obtaining approval from the Competent Authority. The Assessing Officer has recorded reasons for reopening which have been mentioned on page 2 of the assessment order. Copy ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 4 of the reasons recorded for reopening were provided to the assessee on 29/10/2013. The Assessment Order was passed u/s 147 r.w.s 143(3) on 25/3/2014. 4. The appellant assessee company filed an appeal before the ld.CIT(A)-2, Nashik against the said order passed under section 143 r.w.s 147 of the Act. The ld.CIT(A) passed the order on 13.01.2015. Against this order of ld.CIT(A), the appellant assessee company has filed appeal before this Tribunal. 5. At the outset, the ld.Authorised Representative(ld.AR) of the assessee explained that the Ground No.1 to 8 are legal grounds by which the appellant assessee has challenged the validity of the re-opening proceedings. 6. The ld.AR for the assessee submitted as under: 9. The reasons recorded by Assessing Officer before issuance of notice u/s 148 of I.T.Act 1961 are at Page No.127 of Paper Book wherein the learned assessing officer has observed that as on 31/03/2008 J.M. Cotton Ginning & Pressing Co Pvt Ltd is 100% subsidiary of the assessee company. It is further observed that reserves and surplus of J.M.Cotton ginning & Pressing Co Pvt. As on 31/03/2008 was Rs.1,34,39,587.00 and the assessee obtained loan of Rs.7,87,40,676.00 on 31/03/2008 The learned assessing officer has further observed that M/s Krishi Dhan cattle Feeds Pvt Ltd is subsidiary of the assessee company in which the assessee company held 81.45% shareholding as on 31/03/2008. It is further observed that reserves and surplus of M/s Krishi Dhan cattle Feeds Pvt Ltd was Rs.3,82,78,742.00 and the assessee obtained loan of Rs.16,19,000.00 as on 31/03/2008. Please refer Page No.56 of Paper Book filed which discloses loans obtained by assessee company as on ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 5 31/03/2008 Please refer Page No.94 of Paper Book which discloses reserves and surplus as on 31/03/2008 of J.M. Cotton Ginning Pressing Co Pvt Ltd and Page No.95 discloses loans and advances receivable on 31/03/2008 by J .M. Cotton Ginning Pressing Co Pvt Ltd. Please refer Page No.100 of Paper Book which discloses reserves and surplus as on 31/03/2008 of Krishi Dhan Cattle Feeds Pvt Ltd and Page No.l0l discloses loans and advances receivable as on 31/03/2008 by Krishi Dhan Cattle Feeds Pvt Ltd 10. It is most respectfully submitted that during original assessment proceedings, Vide Page No.7 5 item No .11 of Paper book filed a copy of notice dt.23/06/2010 issued u/s 142[1] of the LT. Act 1961 was enclosed whereby a specific query about loan accepted by the appellant company was raised' by the learned assessing officer. To support his submissions, the ld.AR of the Assessee also relied on the decisions of the Hon’ble Supreme Court in CIT vs. Kelvinator Ltd 320 ITR 561 (SC), the Hon’ble Bombay High Court in Mrs. Praveen P Bharucha vs. Dy.CIT 348 ITR 325 (BOM) and Cedric De Souza Faria vs. Dy.CIT 400 ITR 30 (BOM). 7. The main contention of the ld.AR is that during the original assessment proceedings, all the documents asked by the Assessing Officer (AO) were submitted by the assessee. The ld.AR invited our attention to the copy of the notice under section 142 of the Act dated 23.06.2010 issued by the AO containing eleven (11) questions. The relevant questions were as under: ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 6 - Details of loans and advances of Rs.98,32,727/- with relation to the persons concerned and purpose of the same. - Please furnish confirmation in respect of liabilities, outstanding as on 31.03.2008 of Rs.35,29,69,501/-. - Please furnish confirmation of unsecured loans accepted during the year and interest debited/paid to the lenders. The said notice and questionnaire were enclosed at page no.74 and 75 of the paper books of the appellant. 8. The ld.AR submitted that the appellant furnished reply in response to notice dated 23.06.2010 on 09.08.2010. The appellant filed copy of the said reply in the paper book. The relevant part of the reply is as under: a) J.M.Cotton Ginning & Pressing Co. Pvt. Ltd. Of Rs.7,87,40,676/-:- Extract of account in our books of accounts is enclosed at Sr. Page no.87 & 88. Further contra extract in the books of J.M.Cotton Ginning is enclosed herewith at Sr. Page NO.89 & 90 with confirmation & PAN 7 the Ward in which it is assessed. Copy of acknowledgment of return filed by J.M.Cotton Ginning and the balance sheet in which I am appearing as debtor are enclosed at Sr. Page NO.91 to 93 respectively. b) Khandesh Spg. & Wvg. Mills Ltd. Of Rs.1,92,444/-: Extract of account in our books of accounts is enclosed at Sr. Page No.94. c) Krishi Dhan Cattle Feeds Pvt. Ltd. Of Rs.16,19,000/-:- Extract of account in our books of accounts is enclosed at Sr. Page No.95. Further contra extract in the books of Krishin Dhan Cattle Feeds is enclosed herewith at Sr. Page No.96, with confirmation & PAN 7 the Ward in which it is assessed. Copy of acknowledgment of return filed by Krishi Dhan Cattle assessed. Copy of acknowledgment of return filed by Krishi Dhan Cattle Feeds and the balance sheet in which I am appearing as debtor are enclosed at Sr. Page No.97 to 99 respectively. d) Shri Rajesh Suresh Jain of Rs.22,00,000/-:- Extract of account in our books of accounts is enclosed at Sr.Page No.100. Further contra extract in the books of Rajesh s. Jain is enclosed herewith at Sr. Page No.101. ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 7 e) Mrs. Ratna Suresh Jain of Rs.31,30,711/-:- Extract of account in our books of account enclosed at Sr. Page No.102. Further contra extract in the books of Mrs. Ratna S.Jain is enclosed herewith at Sr. Page No.103, with confirmation & PAN & the Ward in which it is assessed. Copy of acknowledgment of return filed by Mrs. Ratna S. Jain is enclosed at Sr. Page No. 105 to 108. f) Mrs. Tripti Rajesh Jain of Rs.3,36,56,000/-:- Extract of account in our books of accounts is enclosed at Sr. Page No.109. Further contra extract in the books of Mrs. Tripti R. Jain is enclosed herewith at Sr. Page No.10, with confirmation & PAN & the Ward in which it is assessed. Copy of acknowledgement of return filed by Mrs. Tripu R. Jain is enclosed at Sr. page No.111 7 bank pass book is enclosed at Sr. Page No.112 to 113. g) Mrs. Yachana Shailes Jain of Rs.3,33,44,000/-:- Extract of account in our books of accounts is enclosed at Sr.Page No.114 . Further contra extract in the books of Mrs. Yachana S. Jain is enclosed herewith at Sr. Page No.115, with confirmation & PAN & the Ward in which it is assessed. Copy of acknowledgement of return filed by Mrs. Yachana S. Jain is enclosed at Sr.Page No.116 & bank pass book is enclosed at Sr.Page No.117 to 1185. h) Shri. Haribhau D. Jaware of Rs.47,691/-:- Extract of account in our books of accounts is enclosed at Sr. Page No.119. Further contract extract in the books of Haribhau D. Jaware is enclosed herewith at Sr.Page No.120.” 9. The ld.AR further submitted that copy of the Annual Report, Audit Report of the assessee company was submitted during the original assessment proceedings. The said Audit Report contains Unsecured Loans taken by the appellant in Schedule-D. And also Schedule-F shows the Investments of the appellant in J.M.Cotton Ginning & Pressing Co. Pvt. Ltd. and Krishi Dhan Cattle Feeds Pvt. Ltd. The ld.AR also submitted that share holding pattern was also submitted. Therefore, the ld.AR argued that all the required details were submitted during the original assessment proceedings and the ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 8 AO after studying, after applying mind have made the assessment order without any addition. Therefore, the reasons recorded for re-opening is nothing but change of opinion. The ld.AR invited our attention to the fact that all the figures mentioned in the reasons for reopening have been reproduced by the AO from the records, documents submitted during the original assessment proceedings, therefore, the ld.AR vehemently argued that it is nothing but change of opinion based on the same facts. Therefore, contended that re- assessment is bad in law as it is based on mere change of opinion. He relied on the case laws mentioned in the earlier para. 10. On the other hand, the ld.Commissioner of Income Tax(Departmental Representative) [ld.CIT(DR)] for the Revenue submitted as under: 3.1 The assessee has in the original ground No.1 stated that the Ld. CIT(A) should have annulled the re-assessment order in view of the decision of the Hon'ble Delhi Court in the case of Atma Ram Properties Pvt. Ltd. v. DC IT (2012) 343 ITR 143 which was on identical facts. In the case of Atma Ram Properties Pvt Ltd. which had come up before the Hon'ble Delhi High Court, the assessment for the A. Y. 1999-2000 was completed on 15.02.2002 making additions to the returned income which did not include any additions on account of deemed dividend Rs. 19,51,7251- in A.Y. 2001-2002 and holding that addition of deemed dividend of Rs. 1,36,99,8451- was required to be made in the earlier assessment years of A. Y. 1999-2000 & 2000-2001. In the light of the said finding of the Ld. CIT(A), the AO recorded the reasons for the belief that income chargeable to tax had escaped assessment for the A. Y.'s 1999-2000 & 2000-2001 and issued notice U/S 148 for the said A.Y.'s. The Hon'ble Delhi High Court held that the reasons recorded by the AO for A. Y. 1999-2000 did not indicate how the assessee had failed to make full and true disclosure of the material facts and the details filed by the ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 9 assessee in the course of the original assessment proceedings showed that an amount of Rs. 77,00,1821- was payable by the assessee to Mis. Atma Ram Builders Pvt. Ltd. and the AO did not invoke the provisions of section 2(22)(e) in respect of the said amount while passing the order dated 15.02.2002. The Hon'ble Delhi High Court held that the facts for A.Y. 1999-2000 were already known and on record and there was lapse on the part of the AO in not invoking section 2(22)(e) while passing the original assessment order. Hence the Hon'ble Delhi High Court held the reopening of the assessment for the A. Y. 1999-2000 to be unjustified. 3.1.1 It is submitted that in the case before the Hon'ble Delhi High Court, the assessment for the A. Y. 1999-2000 was reopened after the expiry of 4 assessment years from the end of the A.Y. 1999-2000. Hence as per the first proviso to section 147, the AO was required by law to establish that income chargeable to tax has escaped assessment by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. In the present case, the notice uls 148 for the A. Y. 2008-2009 was issued on 29.10.2012 after recording the reasons for the belief that income chargeable to tax has escaped assessment for the said A. Y. The said notice was issued within 4 years from the end of the A. Y. 2008-2009 i.e. before 31.03.2013 and, hence, there is no requirement in law to establish that income chargeable to tax has escaped assessment for the A.Y. 2008-2009 due to failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment 3.2 The assessee has in the original ground No.2 stated that the Ld. CIT(A) should have annulled the re-assessment order as no speaking order was passed by the Assessing Officer on the objections raised by the assessee on the reasons recorded for issue of notice U/S 148 in view of the decision of the Hon'ble Supreme Court in the case of GKN Driveshafts v. CIT (2003) 259 ITR 19 and the decision of the Hon'ble Bombay High Court in the case of Allana Cold Storage Ltd. v. ITO (2006) 287 ITR 1. 3.2.1 On perusal of the records, it is seen that the notice u/s 148 dated 29.1 0.20 12 was served on the assessee on 01.11.2012. There was no compliance to the said notice. The AO issued letter dated 17.10.2013 to the assessee communicating that no compliance had been made to the notice u/s 148 dated 29.10.2012 and if proper compliance was not made within a week of receipt of the letter, the proceedings would be completed exparte. The assessee vide letter dated 21.10.2013 communicated that the return of income already filed on 29.08.2008 be treated as a return filed in response to the notice u/s 148. The assessee vide separate letter dated .21.10.2013 sought the reasons recorded for issue of notice uls 148 in the light of the procedure laid down by the Hon'ble Supreme Court in the case of GKN Driveshafts v CIT (259 ITR 19). The reasons recorded for reopening the assessee was communicated to the assessee vide letter dated 29.10.2013. The assessee ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 10 vide letter dated 10.02.2014 filed on 14.02.2014 filed objections against the reasons recorded for issue of notice uls 148. In response to the said letter, the AO vide letter dated 24.03.2014 communicated to the assessee that the objections have been raised after more than 3 months and reply to the notice U/S 148 was done after almost 12 months from the date of issue and service of notice. The AO in Para 3 of the said letter briefly stated how the provisions of section 2(22)( e) were attracted in respect of the amount received from Mis. 1. M. Cotton Ginning & Pressing Company Pvt. Ltd. during the previous year relevant to A.Y. 2008-2009 in which the assessee was a 99.65% shareholder. 11. The ld.CIT(DR) heavily relied upon the decision of Hon’ble Supreme Court in ITO vs. Tech Span India Private Ltd. in Civil Appeal No.2732 of 2007 dated 24.04.2018. The ld.CIT(DR) invited our attention to paragraph 12 of the said decision which is reproduced here as under: “12. Before interfering with the proposed re-opening of the assessment on the ground that the same is based only on a change of opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order is non-speaking, cryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposed re- assessment proceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in the re-assessment proceedings.” 12. The ld.CIT(DR) further argued that in this case, the AO has not expressed any opinion about applicability of section 2(22)(e) of the Act in the original assessment order. There is no discussion in the original assessment order regarding share holding pattern, etc., Therefore, the ld.CIT(DR) argued that one cannot say that there is change of opinion as no opinion was formed by the AO. The ld.CIT(DR) argued that relying on the ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 11 Hon’ble Supreme Court decision of Tech Span India Pvt. Ltd.(supra) there is no change of opinion as in the assessment order, there is no express or implied opinion on applicability of section 2(22)(e) of the Act. The ld.CIT(DR) has also relied on the decision of Hon’ble Supreme Court in ACIT vs. Rajesh Jhaveri Stock Brokers (P.) Ltd., 291 ITR 500 (SC). 13. In the rejoinder submission, the ld.AR of the assessee took us through the entire judgment of Hon’ble Supreme Court in the case of ITO vs. Tech Span India Private Ltd., (supra) to emphasize the point that in the said case the Hon’ble Apex Court after analyzing the facts has mentioned that the notice dated 09.03.2004 issued during the original assessment makes it clear that the point on which, the re-assessment proceedings were initiated was well-considered in the original proceedings. The Hon’ble Supreme Court after analyzing the fact, came to the conclusion that the Assessing Officer’s view that the deduction under section 10A of the Act was allowed in excess, was based on nothing but a change of opinion on the same facts and circumstances which were already in his knowledge even during original assessment proceedings. The ld.AR of the assessee submitted that in the case of appellant company also the facts were in the knowledge of the Assessing Officer during the original assessment proceedings, hence, it is nothing but a case of change of opinion. ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 12 14. We have heard both the parties and have gone through the material available on record and perused the orders of the Lower Authorities carefully. 14.1 The reasons recorded by the Assessing Officer for re- opening are as under: “In this case, scrutiny assessment U/s.143(3) was completed on 22- 12-2010 determining taxable income at Rs.NIL. it is noticed that Assesee had received unsecured loans of Rs.7,87,40,676/- and Rs.16,19,000/- from M/s.J.M.Cotton Ginning & Pressing Co. Pvt. Ltd. And M/s..Krishi Dhan Cattle Feeds Pvt. Ltd. Respectively. It was noticed that both the companies were such companies in which public was not substantially interested. Further, it is noted that M/s.J.M.Cotton Ginning & Pressing is 100% subsidiary company having reserves and surplus of Rs.1,34,39,587/-. On the other hand, M/s.Krishi Dhan Cattle Feeds Pvt. LTd., was a sister concern in which the assessee company had 81.45% shareholding and was having Reserves and Surplus of Rs.3,82,78,942/-. As assessee company is having substantial shareholding / interest in both the lender companies in terms of Explanation-3 below sub-section (e) of sub-section 2(22) of the Act, loans received from these companies to the extent of reserves and surplus of the lender companies requires to be treated as deemed income U/s.2(22)(e) of the Act. Therefore, I have reason to believe that there is an escapement of income of Rs.1,50,58,587/- (1,34,39,587 + 16,16,000) within the provisions of section 147 of the I.T.Act. 14.2 The issue in the re-opening proceeding is escapement of income under section 2(22)(e) of the Act. Let us try to understand that the facts required for Assessing Officer to determine applicability of section 2(22)(e) of the Act. 2(22)(e): any payment by a company, not being a company in which the public are substantially interested, of any sum (whether as representing a part of the assets of the company or otherwise) 5 made after the 31st day of May, 1987 , by way of advance or loan to a shareholder, being a person who is the beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether with or ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 13 without a right to participate in profits) holding not less than ten per cent of the voting power, or to any concern, in which such shareholder is a member or a partner and in which he has a substantial interest (hereafter in this clause referred to as the said concern) or any payment by any such company on behalf, or for the individual benefit, of any such shareholder, to the extent to which the company in either case possesses accumulated profits.” Thus, for section 2(22)(e) of the Act, following facts are essential: - Loan taken from a company in which the person is shareholder. - Shareholding - Accumulated Profit in the Balance Sheet of the lender. - Closely held company in which public are not substantially interested. 14.3 On perusal of the paper book submitted by the appellant, it is observed that the Assessing Officer vide notice dated 23.06.2010 during the original assessment proceedings had asked the appellant to submit confirmation of unsecured loans, details of liabilities outstanding as on 31.03.2008. It is also observed that appellant assessee during the original assessment proceedings submitted extract of account in the books of appellant of the lender. Contra extract in the books of lender of the appellant’s account along with confirmation. The appellant also filed copies of acknowledgement of return of income of the lenders. It is also observed that in the Audit Report, Schedule-D following unsecured loans have been mentioned ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 14 J.M.Cotton Ginning & Pressing Co. Pvt. Ltd, Rs.7,87,40,676/- Krishin Dhan Cattle Feeds Pvt. Ltd. Rs.16,19,000/-. Similarly, it is also observed from Schedule-F of the Audit Report of the appellant that there were following investments: (i) Equity Shares of J.M.Cotton Ginning & Pressing Co. Pvt. Ltd., of Rs.4,50,00,000/- and (ii) Equity Shares of Krishin Dhan Cattle Feeds Pvt. Ltd. of Rs.1,80,00,000/-. It has been submitted by the ld.AR of the assessee that share holding pattern was also submitted during the original scrutiny proceedings. The DR for the Revenue has not rebutted this submission of the ld.AR. Though it is mentioned in the ld.CIT(A)’s order on page no.18 that appellant had not furnished information of shareholding of the appellant in the lender companies. However, the ld.AR of the Assessee vehemently argued that said statement of the ld.CIT(A) is erroneous and factually incorrect. The ld.AR brought to our notice that in the reasons for reopening it is mentioned that J.M.Cotton Ginning & Pressing Co. Pvt. Ltd., is 100% subsidiary of the assessee and Krishin Dhan Cattle Feeds Pvt. Ltd. has 81.45% shareholding of the assessee, these facts the AO has mentioned from the assessment records of the original assessment. The ld.AR further pointed that in the Audit Report it is clearly mentioned that J.M.Cotton Ginning & Pressing Co. Pvt. Ltd., is subsidiary and Krishin Dhan Cattle Feeds Pvt. Ltd., is a related party. The ld.CIT(DR) has not rebutted the claim of ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 15 the ld.AR of the assessee. Also, in the reasons, the AO has not claimed that it has received the information regarding shareholding of the assessee company in the lender companies after the original assessment was completed. Therefore, the prima facie, we have to accept the submission of the ld.AR of the assessee that shareholding of the appellant company in the lender company were submitted during the original assessment proceedings. D. Thus, during the original assessment proceedings, the AO was having knowledge that assessee company has taken loans from J.M.Cotton Ginning & Pressing Co. Pvt. Ltd., and Krishi Dhan Cattle Feeds Pvt. Ltd. The AO was also having knowledge about shareholding of the assessee company in these lender companies. During the original assessment proceedings, the appellant had submitted the Balance Sheets of the lenders companies.The AO had specifically asked the questions about the unsecured loans. Thus, after considering the submission AO arrived at the decision. Therefore, in this scenario it will be inappropriate to say that the AO has not considered the applicability of Section 2(22)(e) of the Act. E . Hon’ble SC in the case of ITO v/s TechSpan India Private ltd has observed as under : Quote, “ 9) Section 147 of the IT Act does not allow the re-assessment of an income merely because of the fact that the assessing officer has a change of opinion with regard to the interpretation of law differently ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 16 on the facts that were well within his knowledge even at the time of assessment. Doing so would have the effect of giving the assessing officer the power of review and Section 147 confers the power to re- assess and not the power to review........................... 13) The fact in controversy in this case is with regard to the deduction under Section 10A of the IT Act which was allegedly allowed in excess. The show cause notice dated 10.02.2005 reflects the ground for re- assessment in the present case, that 10 is, the deduction allowed in excess under Section 10A and, therefore, the income has escaped assessment to the tune of Rs. 57,36,811. In the order in question dated 17.08.2005, the reason purportedly given for rejecting the objections was that the assessee was not maintaining any separate books of accounts for the two categories, i.e., software development and human resource development, on which it has declared income separately. However, a bare perusal of notice dated 09.03.2004 which was issued in the original assessment proceedings under Section 143 makes it clear that the point on which the re-assessment proceedings were initiated, was well considered in the original proceedings. In fact, the very basis of issuing the show cause notice dated 09.03.2004 was that the assessee was not maintaining any separate books of account for the said two categories and the details filed do not reveal proportional allocation of common expenses be made to these categories. Even the said show cause notice suggested how proportional allocation should be done. All these things leads to an unavoidable conclusion that the question as to how and to what extent deduction should be allowed under 11 Section 10A of the IT Act was well considered in the original assessment proceedings itself. Hence, initiation of the re-assessment proceedings under Section 147 by issuing a notice under Section 148 merely because of the fact that now the Assessing Officer is of the view that the deduction under Section 10A was allowed in excess, was based on nothing but a change of opinion on the same facts and circumstances which were already in his knowledge even during the original assessment proceedings. 14) In light of the forgoing discussion, we are of the view that impugned judgment and order of the High Court dated 24.02.2006 does not call for any interference. The appeal is accordingly dismissed with no order as to costs. ” Unquote. F. Thus Hon’ble SC has held that AO is not permitted to reopen the assessment merely on the basis of change of opinion, with regard to the interpretation of law differently on the facts that were well within his knowledge. Appling the said proposition to the present case, it is observed that all the facts, which are required to decide applicability of section 2(22)(e)were in the ITA No.268/PUN/2015 (A.Y.2008-09) Khandesh Builders Ltd., (A) 17 knowledge of the AO. Therefore, initiating reopening proceedings on the same facts, is nothing but change of opinion. Thus, we are of the considered opinion that in this case the reopening proceeding was merely based on the change of opinion. Therefore, the notice u/s 148 dated 29/10/2012 is without jurisdiction and we set aside the same. As a result, the Assessment Order dated 25/03/2014 for AY 2008-09 also becomes without jurisdiction hence bad in law. Thus, the grounds of appeal 1 to 6 are allowed. 15. The Ground number 7-12 becomes academic in nature as the reopening has been held as without jurisdiction. Therefore, theses grounds have not been adjudicated. 16. In the result, the Appeal of the assessee is partly allowed. Order pronounced in the open Court on 21 st March, 2022. /-S/- Sd/- Sd/- /- (PARTHA SARATHI CHAUDHURY) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 21 st March, 2022 / SGR* आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-4, Pune. 4. The Pr. CIT concerned. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “ए” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.