The ITO, Ward-4, Anand V. The Vallabh Vidhyanagar Commercial Co.Op. Bank Ltd., Anand

ITA 2810/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8318 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-09-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 20-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO.2810/AHD/2014 ( / ASSESSMENT YEAR : 2007-08) INCOME TAX OFFICER WARD-4 2 ND FLOOR, SP COMPLEX NR.OLD CK HALL MAYFAIR ROAD ANAND 388 001 / VS. THE VALLABH VIDHYANAGAR COMMERCIAL CO-OP.BANK LTD. OPP. B & B POLYTECHNIC, V.V. NAGAR ANAND 388 120 # ./ ./ PAN/GIR NO. : AAAAT 2898 Q ( #& / APPELLANT ) .. ( '#& / RESPONDENT ) #&( / APPELLANT BY : SHRI MUDIT NAGPAL, SR.DR '#& )( / RESPONDENT BY : SHRI D.K. PARIKH, AR *+ ), / DATE OF HEARING 29/09/2017 -./0 ), / DATE OF PRONOUNCEMENT 09/ 10 /2017 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL FILED AT THE INSTANCE OF THE ASSESSING OFFICER (AO) AGAINST THE ORDER OF THE COMMISSIONER OF INCO ME TAX(APPEALS)- IV, BARODA [CIT(A) IN SHORT] DATED 28/07/2014 IN THE MATTER OF ASSESSMENT ORDER UNDER S.143(3) R.W.S. 147 OF THE I NCOME TAX ACT, 1961 ITA NO.2810/AHD /2014 ITO VS. THE VALLABH VIDHYANAGAR COMM.CO-OP.BANK L TD. ASST.YEAR 2007-08 - 2 - (HEREINAFTER REFERRED TO AS 'THE ACT') DATED 18/03/ 2014 RELATED TO ASSESSMENT YEAR (AY) 2007-08. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE REA D AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN HOLDING THAT THE REASSE SSMENT U/S.143(3) R.W.S.147 OF THE I.T.ACT IS NOT VALID WI THOUT APPRECIATING THE FACT THAT THE A.O. HAD RIGHTLY ISSUED NOTICE U/ S.148 OF THE ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THE FA CT THAT HONBLE KARNATAKA HIGH COURT IN THE CASE OF C.I.T. VS. RINK U CHAKRABORTHY, 242 CTR HAS HELD THAT WHERE IN THE OR IGINAL ASSESSMENT, INCOME LIABLE TO TAX HAS ESCAPED ASSESS MENT DUE TO OVERSIGHT AND INADVERTENCE OR A MISTAKE IS COMMITTE D BY THE A.O., THE A.O. HAS THE JURISDICTION TO REOPEN THE ORIGINA L ASSESSMENT. THIS HAS BEEN ENDORSED BY THE HONBLE DELHI HIGH CO URT IN THE CASE OF DALMIA P.LTD. VS. C.I.T.(DELHI HC) VIDE ORD ER DATED 28/09/2011, HOLDING THAT DESPITE SPECIFIC AND POINT ED QUERIES IN SECTION 143(3) ASSESSMENT, A.O. CANNOT BE SAID TO H AVE FORMED ANY OPINIONS, IF EXPLICIT OPINION IS NOT RECORDED. 3. WITH THE ASSISTANCE OF THE LD.REPRESENTAIVES ON BEHALF OF THE ASSESSEE AND THE REVENUE, WE FIND THAT THE ASSESSEE HAD ORIGINALLY FILED ITS RETURN OF INCOME ON 29/10/2007. THE AFORESAID RETURN WAS SUBJECTED TO SCRUTINY ASSESSMENT UNDER S.143(3) OF THE ACT ON 15/12/2009. THEREAFTER, A NOTICE UNDER S.148 DATED 06/11/2012 W AS ISSUED AND THE ASSESSMENT COMPLETED UNDER S.143(3) EARLIER WAS ONC E AGAIN REOPENED FOR ASSESSMENT. IN THE REASSESSMENT ORDER UNDER S.143( 3) R.W.S.147 OF THE ACT, THE AO MADE AN ADDITION TOWARDS INTEREST INCOM E RECEIVED DURING ITA NO.2810/AHD /2014 ITO VS. THE VALLABH VIDHYANAGAR COMM.CO-OP.BANK L TD. ASST.YEAR 2007-08 - 3 - ACCOUNTING YEAR 2006-07 TOWARDS NON-PERFORMING ASSE TS (NPA). IN THE FIRST APPEAL AGAINST THE AFORESAID ACTION OF THE AO , THE CIT(A) QUASHED THE REASSESSMENT PROCEEDINGS INITIATED UNDER S.147 RWS 148 OF THE ACT AS WITHOUT JURISDICTION. IT WAS FOUND BY THE CIT(A) T HAT THE IDENTICAL POINT WAS DULY EXAMINED BY THE AO IN THE ORIGINAL ASSESSM ENT PROCEEDINGS AND THEREFORE THE REASSESSMENT ON THE SAME ISSUE CANNOT BE CARRIED OUT MERELY ON THE BASIS OF REVISED OPINION OR CHANGE OF OPINIO N ON THE SAME VERY ISSUE. AS POINTED OUT ON BEHALF OF THE ASSESSEE, W E FIND THAT THE ASSESSEE HAD DULY DISCLOSED THE RELEVANT FACTS AS PER A SUIT ABLE NOTE ON THE BOTTOM OF THE COMPUTATION OF INCOME. WE ALSO OBSERVE THAT SPECIFIC QUESTION OF DEDUCTION CLAIMED UNDER S.80P OF THE ACT TOWARDS TH E AFORESAID AMOUNT OF RS.82,33,739/- WAS RAISED IN THE NOTICE ISSUED B Y THE AO UNDER S.142(1) DATED 04/03/2009 IN THE ORIGINAL ASSESSMEN T PROCEEDINGS. WE ALSO TAKE NOTE OF THE REPLY OF THE ASSESSEE THERETO FOR ENTITLEMENTS OF DEDUCTION UNDER S.80P OF THE ACT DATED 20/11/2009. THUS, IT IS APPARENT THAT THE AO IN THE ORIGINAL ASSESSMENT PROCEEDINGS HAD TAKEN A CONSCIOUS VIEW ON THE ELIGIBILITY OF CLAIM OF AFORESAID DEDUC TION. THEREFORE, THE CIT(A), IN OUR VIEW, HAS RIGHTLY RELIED UPON THE JU DGEMENTS IN THE CASE OF NATIONAL DAIRY DEVELOPMENT BOARD 356 ITR 413 (GUJ.) AND OF CIT VS. KELVINATOR OF INDIA 320 ITR 561 (SC). IN THE TERMS OF AFORESAID DECISIONS AND AS PER LONG LINE OF JUDICIAL PRECEDEN TS CONSISTENTLY HOLDING THAT A MERE CHANGE OF OPINION ON THE PART OF AO ON THE ISSUE EXAMINED EARLIER DOES NOT GRANT JURISDICTION TO REOPEN THE C OMPLETED ASSESSMENT ITA NO.2810/AHD /2014 ITO VS. THE VALLABH VIDHYANAGAR COMM.CO-OP.BANK L TD. ASST.YEAR 2007-08 - 4 - PROCEEDINGS UNDER S.147 OF THE ACT, WE FIND NO INFI RMITY IN THE ORDER OF THE CIT(A) WHILE QUASHING THE REASSESSMENT PROCEEDI NGS. CONSEQUENTLY, WE FIND NO MERIT IN THE APPEAL OF THE REVENUE. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. THIS ORDER PRONOUNCED IN OPEN COURT ON 09 / 10 /2017 SD/- SD/- ( ) ( ) ( MAHAVIR PRASAD ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 09/ 10 /2017 4..*,.*../ T.C. NAIR, SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. #& / THE APPELLANT 2. '#& / THE RESPONDENT. 3. 567, 8, / CONCERNED CIT 4. 8, ( ) / THE CIT(A)-IV, BARODA 5. 9:;,*67 , 67 0 , 5 / DR, ITAT, AHMEDABAD 6. ;<+ / GUARD FILE. / BY ORDER, '9,, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD