SMT ASHA KALA, Jaipur V. ACIT, Jaipur

ITA 37/JPR/2011

• Counselvise Citation: 3723114 RSA 2011
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-11-2011
• Assessment Year: 1991-1992
• Appeal Filed On: 17-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Assessee Lawyers: JK RANKA
• Keywords: Reopening of assessment; Depreciation; Rule of consistency; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 80HHC; 234B; 115JB; 147; 148; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L.KALRA) ITA NO.37/ JP/2011 ASSESSMENT YEAR 1991-92 PAN: ABSPK 6842 R SMT. ASHA KALA VS. THE ACIT W/O SHRI VIVEK KALA CIRCLE- 3(1) A-95, JANTA COLONY, JAIPUR JAIPUR (APPELLANT ) (RESPONDENT) ASSESSEE BY : SHRI J.K. RANKA & SIDHARTH RA NKA DEPARTMENT BY : SHRI D.K. MEENA DATE OF HEARING: 2-11-2011 DATE OF PRONOUNCEMENT: 16-11-2011 ORDER PER N.L. KALRA, AM:- THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-II JAIPUR DATED 23-11-2010 FOR THE ASSESSMENT YEAR 1991-92. 2.1 THE FIRST GROUND OF APPEAL OF THE ASSESSEE IS T HAT THE LD. CIT(A) HAS ERRED IN HOLDING THAT ISSUANCE OF NOTICE U/S 148 IS VALID. I N THE THIRD SUB-PARA OF THIS GROUND OF APPEAL THE ASSESSEE HAS STATED THE ORIGINAL ASSESS MENT WAS COMPLETED U/S 143(3) AND THE MATTER HAS BEEN EXAMINED BY THE AO AND THE LD. CIT( A) AND THEREFORE, ISSUING OF NOTICE U/S 148 IS BAD IN LAW. 2.2 THE ASSESSMENTS FOR ASSESSMENT YEAR 1989-90 AND 1990-91AND THE YEAR UNDER APPEAL I.E. 1991-92 WERE INITIATED ON THE SAME FACT S AND ON THE SAME REASONS. THE REASSESSMENTS ORDERS FOR THE ASSESSMENT YEAR 1989-9 0 AND 19909-91 HAVE BEEN QUASHED BY THE TRIBUNAL AND THE LD. CIT(A) HAS ERRED IN HOL DING THAT FACTS ARE DISTINGUISHABLE. THE 2 THIRD SUB-PART OF THE GROUND OF APPEAL IS THAT LD. CIT(A) IS NOT JUSTIFIED IN NOT FOLLOWING THE ORDER OF THE TRIBUNAL. 2.3 THE ASSESSEE IS CARRYING ON THE BUSINESS OF PRO CURING ADVERTISEMENTS FOR THE JOURNAL KNOWN AS DIAMOND WORLD AND THE SAME JOURNA L IS BEING PUBLISHED AND PRINTED BY THE ASSESSEE. ACCORDING TO THE AO, THE DEDUCTIO N U/S 80HHC HAS BEEN WRONGLY ALLOWED WHILE PASSING THE ASSESSMENT ORDER ON 27-02 -1992. THE AO THEREFORE, ISSUED NOTICE U/S 148 OF THE ACT. 2.4 BEFORE THE LD. CIT(A), THE LD. AR HAS FILED THE WRITTEN SUBMISSION WHICH ARE SUMMARIZED AS UNDER:- (I) THE ASSESSEE OBJECTED TO THE INITIATION OF PROCEEDI NGS VIDE DETAILED LETTER DATED 28-02-1995. THE ASSESSEE ALSO REQUIRED THE ASSESSEE TO PROVIDE THE REASONS IF ANY RECORDED U/S 148(2) OF T HE ACT. NO REASONS HAVE BEEN PROVIDED. THE ATTENTION WAS DRAWN TOWARDS THE DECISION OF HON'BLE APEX COURT IN THE CASE OF GKN D RIVESHAFTS (INDIA) LTD. VS. ITO REPORTED IN 259 ITR 19. THE RE ASSESSMENT WAS BASED ON MERELY ON CHANGE OF OPINION. THE ATTENTION WAS DRAWN TOWARDS THE DECISION OF THE HON'BLE BOMBAY HIGH COU RT IN THE CASE OF M.J.PHARMACEUTICAL LTD. VS. DCIT, 297 ITR 119. RELIANCE WAS PLACED ON THE DECISION OF HON'BLE DELHI HIGH CO URT IN THE CASE OF CIT VS. FEATHER FOAM ENTERPRISES (P) LTD., 296 I TR 342. THE HON'BLE DELHI HIGH COURT OBSERVED THAT THE AO HAS G OT NO POWER TO REVIEW HIS ORDER NOR CAN HE DO IT U/S 147 OF THE ACT. THE AO ORDERING REASSESSMENT CANNOT SIT AS A COURT OF APPE AL OVER THE AO MAKING THE ORIGINAL ASSESSMENT AND IT IS NOT OPEN TO THE AO ORDERING ASSESSMENT TO SUBSTITUTE HIS OWN OPINION F OR THAT OF THE AO WHO MADE THE ORIGINAL ASSESSMENT. 3 2.5 THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE HAS UPHELD THE REOPENING OF THE ASSESSMENT AFTER OBSERV ING AS UNDER:- 3. THE SUBMISSIONS OF THE APPELLANT BEEN DULY CO NSIDERED. IN THIS CASE, THE ORIGINAL ASSESSMENT U/S 143(3) WAS C OMPLETED ON 27-02- 1992. SUBSEQUENTLY, IT WAS FOUND THAT THE DEDUCTION U/S 80HHC HAD BEEN WRONGLY ALLOWED TO THE ASSESSEE. THE AO WAS OF THE VIEW THAT THE ASSESSEE HAD NOT EXPORTED ANY GODS OR MERCHANDISE SO AS TO Q UALIFY FOR DEDUCTION U/S 80HHC OF THE INCOME TAX ACT, 1961 . THE AO WAS OF THE VIEW THAT THE ASSESSEE HAD MERELY RENDERED SERVICES AND IT W AS NOT ENTITLED TO DEDUCTION U/S 80HHC OF THE INCOME TAX ACT. ACCORDIN GLY, AFTER DULY RECORDING REASONS FOR REOPENING AN MAKING NECESSARY PERMISSION FROM THE DC, RANGE -3, NOTICE U/S 148 OF THE INCOME TAX ACT , 1961 WAS ISSUED TO THE ASSESSEE ON 13-02-1995. BEFORE ME, THE COUNSEL OF THE APPELLANT ARGUED THAT ON IDENTICAL FACTS AND CIRCUMSTANCES, T HE HON'BLE JAIPUR TRIBUNAL HAD QUASHED THE REOPENING U/S 147 OF THE I NCOME TAX ACT, 1961 FOR ASSESSMENT YEAR 1989-90 AND ASSESSMENT YEAR 199 0-91 VIDE ITS ORDER DATED 30-06-08. IT WAS HELD BY THE HON'BLE JAIPUR T RIBUNAL THAT THERE WERE NO REASONS TO BELIEVE TO ACQUIRE JURISDICTION BY TH E AO FOR INVOKING THE PROVISIONS OF SECTION 147 OF THE INCOME TAX ACT, 19 61 ESPECIALLY WHEN THERE WAS NO FAILURE OR OMISSION ON THE PART OF THE ASSESSEE TO DISCLOSE THE MATERIAL FACTS RELATING TO CLAIM OF DEDUCTION U/S 8 0HHC OF THE INCOME TAX ACT, 1961 DURING THE ORIGINAL ASSESSMENT PROCEEDIN GS AND ACCORDINGLY NOTICE ISSUED U/S 148 OF THE INCOME TAX ACT, 1961 WAS HELD TO BE INVALID. 4. IN THE FIRST AND SECOND GROUNDS OF APPEAL, THE A PPELLANT HAS CHALLENGED THE VALIDITY OF NOTICE U/S 148 OF THE IN COME TAX ACT, 1961 . HOWEVER, I FIND THAT IN PARA 5 OF THE ORDER OF THE HON'BLE ITAT FOR ASSESSMENT YEAR 1989-90 AND 1990-91, IT HAD BEEN HE LD THAT FOR ASSESSMENT YEARS INVOLVED, THE AO BEFORE INITIATION OF REOPENI NG PROCEEDINGS, HAD NOT RECORDED HIS SATISFACTION THAT HE HAD REASONS TO BE LIEVE THAT THE INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT WITH THE M EANING OF SECTION 147 4 OF THE INCOME TAX ACT BY REASON OF OMISSION OR FAIL URE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS NECESSARY FOR THE ASSESSMENT. IT HAS BEEN FURTHER OBSERVED THAT THE AO DID NOT PROVIDE COPY OF THE REASONS IF ANY RECORDED TO THE ASSESSEE AND IT WAS NOT SPELT OUT WHETHER THE HAD RECEIVED ANY SANCTION FROM THE HIGH ER AUTHORITIES AS SPECIFIED IN SECTION 151 OF THE INCOME TAX ACT, 196 1 OR NOT. IN THIS CONNECTION, A REPORT WAS CALLED FROM THE ITO WARD 6(1), JAIPUR. THE AO HAS SUBMITTED THE REMAND REPORT DATED 7-9-10- WH EREIN IT IS CATEGORICALLY MENTIONED THAT THE REASONS FOR REOPEN ING WERE DULY RECORDED BY THE AO AND NECESSARY SANCTION WAS ALSO OBTAINED FROM DC, RANGE-3, JAIPUR. AFTER GETTING PERMISSION FROM THE RANGE HEA D, THE NOTICE U/S 148 WAS ISSUED BY THE AO ON 13-02-95. THE COPY OF THE R EASONS RECORDED WAS ALSO PROVIDED TO THE COUNSEL OF THE ASSESSEE ON 10- 9-96. THE OBJECTIONS OF THE ASSESSEE WAS CONSIDERED AND REJECTED BY THE AO IN THE ASSESSMENT ORDER ITSELF. THE COP OF THE REMAND REPORT WAS ALSO PROVIDED TO THE APPELLANT FOR REBUTTAL. IN RESPONSE, THE COUNSEL OF APPELLANT VIDE LETTER DATED 13-9-10 HAS NOT COMMENTED UPON THE SAME EXCEP T RELYING ON THE ORDER OF TRIBUNAL IN HOW OWN CASE FOR ASSESSMENT YE AR 1989-90 AND 1990- 91. ACCORDINGLY IT IS PRESUMED THAT NOTHING ADVERS E HAS BEEN NOTICED BY THE COUNSEL OF THE APPELLANT IN THIS REGARD. THEREF ORE, TO THIS EXTENT THERE IS MATERIAL CHANGE IN THE FACTS AND CIRCUMSTANCES OF T HE CASE FOR YEAR UNDER CONSIDERATION .THEREFORE THE OBSERVATIONS MADE BY H ON'BLE MEMBER IN PARA 5 FOR ASSESSMENT YEAR 1989-90 AND 1990-91 ARE NOT APPLICABLE TO THE CURRENT YEAR. ACCORDINGLY I HOLD THAT THE MERELY ON SUCH TECHNICAL GROUNDS, THE NOTICE U/S 148 CANNOT BE TREATED AS IN VALID. THE VARIOUS OBJECTIONS RAISED BY THE APPELLANT WERE ALSO CONSID ERED BY THE AO IN THE ASSESSMENT ORDER ITSELF. IT WAS HELD BY THE HON'BL E MADRAS HIGH COURT IN THE CASE OF MAVIS SATCOM LTD. (325 ITR 428) THAT TH ERE IS NO NEED TO PASS SEPARATE/ REASONED ORDER FOR DISPOSING ASSESSEES O BJECTION TO NOTICE U/S 148 SINCE THE ORDER REJECTING OBJECTIONS MERGES IN THE ORDER OF ASSESSMENT . 5 5. THE NEXT ISSUE FOR MY CONSIDERATION IS WHETHER R EOPENING OF ASSESSMENT CONSTITUTED CHANGE OF OPINION OR NOT. I HAVE GONE THROUGH THE ORIGINAL ASSESSMENT ORDER DATED 27-2-92 AND I F IND THAT THE ISSUE OF ALLOWABILITY OF DEDUCTION U/S 80HHC HAS NOT BEEN D ISCUSSED AT ALL BY THE AO. THE SAME APPEARS TO HAVE BEEN ALLOWED TO THE AS SESSEE IN A MECHANICAL FASHION WITHOUT APPLICATION OF MIND. IT WAS HELD BY HON'BLE MUMBAI HIGH COURT IN THE CASE OF YURAJ VS UNION OF INDIA(315 ITR 84) THAT WHEN THE ISSUE NOT ADDRESSED BY THE AO IN THE ORIGINAL ASSESSMENT ORDER AN THERE IS NO APPLICATION OF MIND BY THE AO NOTICE U/S 148 IS VALID AND NO SHELTER COULD BE SOUGHT ON THE GROUND OF CH ANGE OF OPINION. THE OBSERVATIONS OF HON'BLE HIGH COURT ARE REPRODUCED A S UNDER:- WE HAVE PERUSED THE ASSESSMENT ORDER PASSED U/S 1 43(3) OF THE INCOME TAX ACT, 1961 ON JANUARY 9, 1998. THE ACIT, CIRCLE- 2(1), DHULE, WHILE PASSING THE ASSESSMENT ORDER OBSERVED IN PARAGRAPH 3 THAT THE ASSESSEE HAD SOLD HIS RIGHT TO PURCHASE OPEN PL OT (NA) AT KOTHURD, PUNE AND COPY OF THE AGREEMENT OF ACQUISITION OF RI GHT TO PURCHASE AND DEED IN RESPECT OF RIGHT TO PURCHASE EXECUTED BY TH E BUILDERS WERE FILED ON RECORD. AFTER SAYING SO THE ASSISTANT COMMISSIONER OBSERVED THAT SUBJECT TO THE ABOVE REMARKS THE TOTAL INCOME WAS COMPUTED AS PER THE CHART MENTIONED IN THE ORDER. FROM THE PERUSAL OF THE ORD ER, WE DO NOT FIND AN APPLICATION OF MIND ON THE PART OF THE ASSISTANT CO MMISSIONER OF INCOME- TAX TO THE FACTS OF THE CASE, THE ISSUE TO BE DEALT WITH THE REASONS FOR PASSING THE ORDER. THE VALUE OF THE LAND WAS NOT DE TERMINED BY THE REVENUE .THE ISSUE RELATING TO CAPITAL GAIN OR CASU AL INCOME WAS ALSO NOT ADDRESSED BY THE REVENUE. IN THE LIGHT OF THE SAME, IN THE FACTS OF THE CASE, WE FIND THAT THE AO WAS JUSTIFIED IN ISSUING THE NO TICE U/S 148 OF THE ACT ON MAY 17, 2000. ORIGINAL RECORD WAS PRODUCED BEFOR E US BY SHRI ALOK SHARMA. THE AO HAD APPLIED HIS MIND AND THEN PASSED A REASONED ORDER FOR ISSUING NOTICE U/S 148. THERE IS NO DISPUTE ON THE POINT THAT MERE ISSUANCE OF NOTICE WOULD NOT CONCLUDE THE ISSUE FIN ALLY. AT THAT STAGE, IT 6 WOULD BE SUFFICIENT IF THE REVENUE DEMONSTRATES THA T THERE WERE GOODS REASONS WHICH WERE RECORDED BY THE AO BY APPLYING H IS MIND. WE FIND THAT THIS COURT SHALL NOT INTERFERE AT THE STAGE OF MERE ISSUANCE OF NOTICE. THE PETITIONER IS NOT REMEDY LESS AND ALL THE OPPOR TUNITIES WHICH ARE AVAILABLE TO THE PETITIONER IN LAW COULD BE UTILIZE D BY THE ASSESSEE . THE LD. SENIOR COUNSEL SUBMITS THAT AS THE WRIT PETITION WA S ADMITTED AND INTERIM RELIEF WAS GRANTED THE PETITIONER NEED NOT BE RELEG ATED TO THE REMEDIES AVAILABLE IN LAW. IN A SUITABLE CASE, THIS ARGUMENT COULD HAVE BEEN CONSIDERED BUT AFTER A PERUSAL OF THE ASSESSMENT O RDER PASSED U/S 143(3) OF THE ACT, WE ARE OF THE VIEW THAT THE ASSISTANT COMM ISSIONER DID NOT APPLY HIS MIND AND FAILED TO RECORD GOOD AND PROPER REASO NS FOR PASSING THE ASSESSMENT ORDER. IN THE FACTS OF THE CASE, WE DO N OT FIND MERE CHANGE OF OPINION IN RECORDING REASONS FOR ISSUING NOTICE U/S 148 BY THE ASSESSING OFFICER. IN PRINCIPLE, I ALSO SUBSCRIBE TO THE SAID VIEW. IN THE PRESENT CASE, THERE IS NOTHING DISCERNIBLE FROM THE ORIGINAL ASSE SSMENT ORDER DATED 27-2- 1992 THAT THE ISSUE OF DEDUCTION U/S 80HHC WAS AT A LL ADDRESSED BY THE AO . THERE IS NO DISCUSSION ABOUT THE ALLOWABILITY OF DEDUCTION 80HHC OF THE INCOME TAX ACT. THE SAME WAS ALLOWED TO THE ASS ESSEE IN A MECHANICAL MANNER. SIMILARLY IN THE CASE OF CONSOLI DATED PHOTO AND FINVEST LTD. (281 ITR 394), IT WAS HELD THAT MERE P RODUCTION OF BOOKS OF ACCOUNTS OR OTHER EVIDENCE FROM WHICH THE AO COULD HAVE, WITH DUE DILIGENCE, DISCOVERED THE MATERIAL EVIDENCE DOES NO T NECESSARILY AMOUNT TO A DISCLOSURE WITHIN THE MEANING OF THE PROVISO TO S ECTION 147 OF THE INCOME TAX ACT, 1961. IN THE CITED CASES THE ASSESS EE , AN IMPORT AGENCY, FILED ITS RETURN FOR THE ASSESSMENT YEAR 1998-99 DE CLARING LOSS OF RS. 2,96,44,790/-. THE ASSESSMENT ORDER U/S 143(3) WAS COMPLETED AT A LOSS OF RS. 2,95,44,790/- AFTER AN ADDITION OF RS. 1.00 LAC ON ACCOUNT OF LEGAL AND PROFESSIONAL CHARGES WAS MADE TO THE RETURNED LOSS OF RS. 2,96,44,790/-. THEREAFTER, ON A PERUSAL OF THE RECORD, IT WAS NOTI CED THAT DURING THE 7 ASSESSMENT YEAR THE ASSESSEE HAD DEBITED EXPENSES A MOUNTING TO RS. 16,48,23,292/- UNDER THE HEAD IMPORT AGENT EXPENSE S. AFTER TAKING INTO ACCOUNT THE NATURE OF THE INCOME DECLARED BY THE AS SESSEE, THE AO WAS OF THE VIEW THAT THE SAID EXPENSES HAD NO RELEVANT WIT H ANY OF THE SOURCE OF INCOME AND THESE EXPENSES HAD BEEN WRONGLY CLAIMED AND ALLOWED. ON A FURTHER PERUSAL OF THE RECORDS, IT WAS ALSO NOTICED THAT DURING THE ASSESSMENT YEAR THE ASSESSEE HAD INCURRED CERTAIN A DMINISTRATIVE AND PERSONAL EXPENSES TO THE EXTENT OF RS. 7,27,000/- T O EARN DIVIDEND INCOME OF RS. 1,58,58,710/- WHICH HAD BEEN CLAIMED AS EXEM PT U/S 10(33). THE SAID EXPENSES HAD NOT BEEN DISALLOWED IN THE ASSESS MENT COMPLETED U/S 143(3). THE AO ISSUED NOTICE U/S 148 PROPOSING TO R EOPEN THE ASSESSMENT ON THE GROUND THAT INCOME ELIGIBLE TO TAX FOR THE S AID YEAR HAD ESCAPED ASSESSMENT. ON A WRIT PETITION, IT WAS HELD DISMISS ING THE PETITION, (I) THAT THE PROVISO TO SECTION 147 ENVISAGES ACTION IN THE ORDINARY COURSE WITHIN A PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT A SSESSMENT YEAR . HOWEVER, THAT LIMITATION DOES NOT APPLY TO CASES WH ERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT ON ACCOUNT INTER ALIA OF THE FAILURE OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS. PRODUCTION OF THE BOOKS OF ACCOUNTS AND OTHER DOCUMENTARY EVIDENCE RE LEVANT FOR ASSESSMENT DID NOT IMPLY A FULL AND TRUE DISCLOSURE IN THE LIGHT OF EXPLANATION 1 TO SECTION 147. THEREFORE, THE ACTION INITIATED BY THE AO DID NOT SUFFER FROM ANY ERROR OF JURISDICTION TO WARRAN T INTERFERENCE FROM THE COURT. THE ORDER PASSED BY THE AO INDICATED THE BAS IS ON WHICH INCOME ELIGIBLE TO TAX HAD IN HIS OPINION ESCAPED ASSESSME NT. THE ASSESSMENT ORDER DID NOT ADDRESS ITSELF TO THE QUESTION WHICH THE AO PROPOSED TO EXAMINE IN THE COURSE OF ASSESSMENT PROCEEDINGS. TH ERE MAY BE A PRESUMPTION THAT THE ASSESSMENT PROCEEDINGS HAD BEE N REGULARLY CONDUCTED BUT THERE COULD BE NO PRESUMPTION THAT EV EN WHEN THE ORDER OF ASSESSMENT WAS SILENT, ALL POSSIBLE ANGLES AND ASPE CTS OF A CONTROVERSY HAD BEEN EXAMINED AND DETERMINED BY THE AO. THE PRINCIP LE THAT A MERE CHANGE OF OPINION COULD NOT BE A BASIS FOR REOPENIN G COMPLETED 8 ASSESSMENT WOULD BE APPLICABLE ONLY TO SITUATIONS W HERE THE AO HAD APPLIED HIS MIND AND TAKEN A CONSCIOUS DECISION ON A PARTICULAR MATTER IN ISSUE. IT WOULD HAVE NO APPLICATION WHERE THE ORDER OF ASSESSMENT DID NOT ADDRESS ITSELF TO THAT ASPECT WHICH WAS THE BASIS F OR REOPENING OF THE ASSESSMENT. THEREFORE, IT WAS INCONSEQUENTIAL WHETH ER OR NOT THE MATERIAL NECESSARY FOR TAKING A DECISION WAS AVAILABLE TO TH E AO EITHER GENERALLY OR IN THE FORMA REPLY TO THE QUESTIONNAIRE SERVED UPON THE ASSESSEE. WHAT IS IMPORTANT WAS WHETHER THE AO HAD BASED ON THE MATER IAL AVAILABLE TO HIM TAKEN A VIEW. SINCE HE HAD NOT DONE SO, THE REASSES SMENT COULD NOT BE CHALLENGED ON THE GROUND THAT IT WAS BASED ON A CHA NGE OF OPINION. 2.6 BEFORE US, THE LD. AR SUBMITTED THAT THE ISSUE OF DEDUCTION U/S 80HHC WAS CONSIDERED BY THE LD. CIT(A). THE LD. CIT(A) DIRECT ED THE AO TO ALLOW RELIEF U/S 80HHC ON THE BASIS OF THE ASSESSED INCOME AS MAY BE COMPU TED AFTER GIVING EFFECT TO HIS ORDER BUT BEFORE ALLOWING ANY RELIEF UNDER CHAPTER VIA OF THE I.T. ACT. THUS THERE WAS NO CASE OF UNDER ASSESSMENT IN THE ORIGINAL ASSESSMENT. THE RE HAS BEEN NO UNDER STATEMENT OF INCOME AND THERE IS NO CASE OF INCOME ORIGINALLY AS SESSED IS UNDER ASSESSED. HENCE, ACTION U/S 148 IS WITHOUT JURISDICTION. THERE HAS B EEN NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE MATERIAL FACTS REQUIRED. THIS IS A CLEAR CUT CHANGE OF OPINION. RELIANCE HAS BEEN PLACED ON THE DECISIONS OF THE HON'BLE BOMBAY HIGH COURT AND HON'BLE DELHI HIGH COURT WHICH WERE CITED BEFOR E THE LD. CIT(A). 2.7 BEFORE US, THE LD. AR HAS RELIED UPON FOLLOWING DECISIONS:- 1. ADDL. CIT VS. GANESH LAL LALCHAND, 154 ITR 274 (RAJ .) 2. SAMPAT RAM BUDHMAL DUGAR VS. CWT, 164 ITR 179 (RAJ. ) 3. PARASHURAM POTTERY WORKS VS. ITO, 106 ITR 1 (SC) 9 THE LD. AR HAS ALSO HEAVILY RELIED UPON THE DECISIO N OF THE TRIBUNAL IN THE CASE OF THE A FOR THE ASSESSMENT YEAR 1989-90 AND 1990-91. THE LD . AR FURTHER STATED THAT ON THE BASIS OF THE PRINCIPLE OF CONSISTENCY, THE EARLIER DECISI ON OF THE TRIBUNAL IS REQUIRED TO BE FOLLOWED. 2.8 ON THE OTHER HAND, THE LD. DR HAS FILED THE COP Y OF THE REASONS RECORDED. THE LD. DR RELIED UPON THE ORDER OF THE LD. CIT(A). 2.9 WE HAVE HEARD BOTH THE PARTIES. FOR THE ASSESSM ENT YEAR 1989-90, NOTICE U/S 148 WAS ISSUED FROM THE END OF 04 YEARS OF THE ASSESSM ENT YEAR. HOWEVER, THE NOTICE U/S 148 FOR THE ASSESSMENT YEAR 1990-91 HAS BEEN ISSUED WIT HIN 04 YEARS FROM THE END OF THE ASSESSMENT YEAR. WHILE DECIDING THE APPEAL FOR THE ASSESSMENT YEAR 1989-90 AND 1990- 91, THE TRIBUNAL IN PARA 5 AND 7 OF ITS ORDER HAS O BSERVED AS UNDER:- 5. ON PERUSAL OF REASSESSMENT ORDER IT IS APPAREN T THAT NOTICE UNDER SECTION 148 OF THE ACT AND REASSESSMENT IS WI THOUT JURISDICTION, ILLEGAL, VOID, AB-INITIO AND NULLITY BECAUSE THERE WAS NO OMISSION OR FAILURE ON THE PART OF THE APPELLANT TO MAKE RETURN UNDER S ECTION 139 OF THE ACT OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL, PRIMARY A ND RELEVANT FACTS NECESSARY FOR ITS ASSESSMENT AND THEREFORE, THERE W AS NO RIGHT, POWER AND COMPETENCE TO EXERCISE JURISDICTION UNDER SECTION 1 47 OF THE ACT. FURTHER, THERE WAS NO REASON TO BELIEVE THAT INCOME CHARGEAB LE TO TAX HAS ESCAPED ASSESSMENT TO TAX. THE AO BEFORE INITIATION OF REO PENING PROCEEDINGS HAS NOT RECORDED HIS SATISFACTION THAT HE HAS REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT AND HE HAD REASON TO BELIEVE THAT TH E INCOME HAS ESCAPED ASSESSMENT BY REASON OF OMISSION OR FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR HIS ASSESSMENT FOR THE YEAR. THERE WAS NO UNDER STATEMENT OF INCOME, I NCOME ORIGINALLY ASSESSED HAVING NOT BEEN UNDER ASSESSED. IN THE PR ESENT CASE THE AO DID 10 NOT PROVIDE COPY OF THE REASONS, IF ANY RECORDED, N OR IT HAS BEEN SPELT AS TO AO HAD RECEIVED ANY SANCTION FROM THE HIGHER AUTHOR ITIES AS SPECIFIED IN SECTION 141 OF THE ACT. WHAT WAS FAILURE ON THE PAR T OF THE ASSESSEE HAS ALSO NOT BEEN SPELT OUT BY THE AO DURING THE COURSE OF REASSESSMENT PROCEEDINGS OR EVEN IN THE ASSESSMENT ORDER. 7. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND SUB STANCE IN THE CONTENTION OF THE LD. A/R THAT UNDISPUTEDLY THE RE WAS NO FAILURE ON THE PART OF THE ASSESSEE IN FURNISHING ALL THE NECESSAR Y INFORMATION AND MATERIAL IN SUPPORT OF THE CLAIMED DEDUCTION UNDER SECTION 80HHC OF THE ACT. THE AO AFTER CONSIDERING THE SAME HAD ALLOWED THE CLAIMED DEDUCTION UNDER SECTION 80HHC OF THE ACT TO THE ASS ESSEE IN THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT. THUS I NITIATION OF REOPENING PROCEEDINGS SUBSEQUENTLY ON THE BASIS THAT THE ASSE SSEE WAS NOT ELIGIBLE FOR CLAIMING DEDUCTION UNDER SECTION 80HHC ON PAYME NTS OF CONVERTIBLE FOREIGN EXCHANGE IN LIEU OF SUPPLY OF JOURNALS AND ADVERTISEMENT PUBLISHED THEREIN CONSTITUTED ADVERTISEMENT CHARGES AND NOT I N LIEU OF SUPPLY OF GOODS OUTSIDE INDIA IS NOTHING BUT CHANGE OF OPINIO N. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ACIT VS. G ANESHI LAL LALCHAND (SUPRA) HAS BEEN PLEASED TO HOLD THAT WHEN AT THE T IME OF ORIGINAL ASSESSMENT THE ITO HAS FAILED TO TAKE NOTE OF THE C ASH CREDITS EVENIF IT WAS ON ACCOUNT OF OVERSIGHT OR MISTAKE OR INADVERTENCE, IT DID NOT EMPOWER INTO REOPEN THE ASSESSMENT UNDER SECTION 147 OF THE ACT. SIMILARLY, IN THE CASE OF DUNLOP RUBBER CO. LTD. VS. ITO (SUPRA), THE HONBLE CALCUTTA HIGH COURT HAS BEEN PLEASED TO HOLD THAT CHANGE OF OPINION WAS NOT GROUND FOR TAKING ACTION OF REOPENING OF ASSESSMENT . IN THE CASE OF GENL. MRIGENDRA SHUM SHER JUNG BAHADUR RANA VS. ITO (SUPR A), THE HONBLE DELHI HIGH COURT HAS BEEN PLEASED TO HOLD THAT MER E CHANGE OF OPINION ON ACCOUNT OF INADVERTENCE AND NEGLIGENCE COULD NOT BE A BASIS FOR INITIATING PROCEEDINGS UNDER SECTION 147 OF THE ACT. THE HON BLE SUPREME COURT IN THE CASE OF GEMINI LEATHER STORES VS. ITO (SUPRA) H AS BEEN PLEASED TO REVERSE THE DECISION OF HONBLE ALLAHABAD HIGH COUR T AND HAD HELD THAT IF 11 THE ITO HAS NOT TAKEN ANY ACTION ON THE TRANSACTION S WHICH WERE EVIDENCED BY DRAFTS IN THE ORIGINAL PROCEEDINGS, HE COULD NOT REMEDY THE ERROR OF HIS OWN OVERSIGHT BY TAKING ACTION UNDER SECTION 147 OF THE ACT. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VI EW THAT THE INITIATION OF REOPENING PROCEEDINGS BY THE AO WAS MERELY BASED ON CHANGE OF OPINION WHICH AS PER THE ABOVE DECISIONS CANNOT BE REASON T O BELIEVE TO ACQUIRE JURISDICTION BY THE AO FOR INVOKING THE PROVISIONS OF SECTION 147 READ WITH SECTION 148 OF THE ACT ESPECIALLY WHEN THERE WAS NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE ALL MATERIAL FACTS RELATIN G TO THE CLAIM OF DEDUCTION DURING THE ORIGINAL ASSESSMENT PROCEEDINGS UNDER SE CTION 143(3) OF THE ACT. THE NOTICE UNDER SECTION 148 ISSUED BY THE AO IN THIS REGARD WAS THUS BEYOND JURISDICTION OF THE AO. THE SAME IS HE LD AS INVALID AND THE ASSESSMENT IN QUESTION MADE IN FURTHERANCE THERETO IS ALSO HELD INVALID AND NOT MAINTAINABLE. I, THUS QUASHING THE SAME ALLOW GROUND NO.1 BY DECIDING THE SAME IN FAVOUR OF THE ASSESSEE. 2.10 THE HON'BLE APEX COURT DECIDED THE CASE IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. ON 25-11-02(SUPRA). IN THE INSTANT CASE, THE N OTICE U/S 148 HAS BEEN ISSUED ON 13-02- 1995 I.E. BEFORE THE DATE OF PRONOUNCEMENT OF JUDGE MENT OF THE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. IN THIS CASE, THE HON'BLE APEX COURT DIRECTED THE LD. CIT(A) TO DISPOSE OFF THE APPEAL BECAUSE ASSESSMENT STOOD ALREADY COMPLETED. LOOKING TO THE DIRECTION GIVEN IN THE CASE OF GKN DRIVESHA FTS (INDIA) LTD. (SUPRA), WE HOLD THAT REOPENING CANNOT BE HELD AS INVALID ON ACCOUNT OF NON-SUPPLY OF REASONS GIVEN TO THE ASSESSEE BY THE AO. SUCH REASONS HAVE BEEN SUPPLIED BY THE LD. CIT(A). THE TRIBUNAL WHILE CONSIDERING THE APPEALS FOR THE ASSESSMENT YE AR 1989-90 AND 1990-91 HAS CONSIDERED THE DECISION OF THE HON'BLE JURISDICTION AL HIGH COURT IN THE CASE OF ADDL. CIT VS. GANESHI LAL LALCHAND (SUPRA). THAT DECISION IS IN RESPECT OF REASSESSMENT U/S 147(A) OF THE ACT. BEFORE 01-04-1989, THE AO CAN REOPEN TH E ASSESSMENT AFTER 04 YEARS IN CASE 12 THERE IS FAILURE ON THE PART OF THE ASSESSEE TO DIS CLOSE FULLY AND TRULY ALL THE MATERIAL FACTS. SECTION 147(B) PROVIDED FOR REOPENING OF THE ASSESS MENT ON THE BASIS OF THE INFORMATION. SECTION 147(A) AS EXISTED EARLIER IS SIMILAR TO THE PROVISO TO SECTION 147 OF THE ACT. NOTICE U/S 148 FOR THE ASSESSMENT YEAR 1989-90 WAS ISSUED AFTER THE END OF FOUR YEARS FROM THE ASSESSMENT YEAR AND THEREFORE, THE PROVISO TO SECTION 147 IS APPLICABLE AND IN CASE THERE IS NO FAILURE ON THE PART OF THE ASSESSE E TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS THEN THE ASSESSMENT CANNOT BE REOPENED. THE T RIBUNAL WHILE DECIDING THE APPEAL FOR THE ASSESSMENT YEAR 1989-90 HAS REFERRED TO THE DEC ISION OF DUNLOP RUBBER CO. LTD. VS. ITO, 79 ITR 349 (CAL.). THIS IS ALSO A CASE WHERE R EOPENING OF THE ASSESSMENT WAS HELD AS INVALID BECAUSE THERE WAS NO OMISSION OR FAILURE ON THE PART OF THE ASSESSEE. REFERENCE WAS MADE TO THE DECISION OF HON'BLE APEX COURT IN T HE CASE OF GEMINI LEATHER STORES VS. ITO , 100 ITR 1. IN THIS CASE ALSO, THE REASSESSME NT WAS U/S 147(A) I.E. REOPENING WAS HELD AS NOT VALID BECAUSE THERE WAS NO FAILURE ON T HE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS. THE LD. AR HAS ALSO R ELIED UPON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF OF M.J.PHARMACEU TICAL LTD. VS. DCIT (SUPRA). IN THIS CASE, THE AO DURING THE COURSE OF ORIGINAL ASSESSME NT PROCEEDINGS REQUIRED THE ASSESSEE AS TO WHY THE PROVISIONS FOR DEFERRED TAXATION SHOU LD NOT BE TAKEN FOR DETERMINING THE BOOK PROFIT U/S 115JB OF THE ACT. THE REOPENING WAS DONE ON THE GROUND THAT DEFERRED TAXATION PROVISION IS REQUIRED TO BE ADDED U/S 115J B OF THE ACT. HENCE, THERE WAS CASE OF CHANGE OF OPINION. IN CASE, THERE IS ANY CHANGE OF OPINION THEN ASSESSMENT CANNOT BE REOPENED. THE LD. AR HAS RELIED UPON THE DECISION O F HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MANOHAR LAL GUPTA 166 TAXMAN 48 3. IN THIS CASE, THE NOTICE U/S 148 WAS ISSUED ON 14-02-1986 FOR THE ASSESSMENT YEAR 19 80-81. THE HON'BLE JURISDICTIONAL 13 HIGH COURT OBSERVED THAT THE AT THE TIME OF PASSING OF THE ORDER ON 15-06-1982 , THE AO WAS IN HIS POSSESSION OF PRIMARY FACTS NECESSARY FO R FRAMING ASSESSMENT AND IT WAS FOR HIM TO DRAW PROPER INFERENCE FROM SUCH FACTS WHICH HE DID NOT DO IT. 2.11 IN THE INSTANT CASE, THE ASSESSMENT FOR ASSESS MENT YEAR 1991-92 WAS MADE ON 27- 02-1992. THE COPY OF THE ASSESSMENT ORDER IS AVAILA BLE AT PAGES 45 TO 47 OF THE OF THE PAPER BOOK. THE AO HAS ONLY MENTIONED THAT THE ASSE SSEE DERIVED INCOME FROM PUBLICATION OF MONTHLY JOURNAL TITLED AS DIAMOND W ORLD. THE SOURCE OF INCOME OF THE ASSESSEE IS FROM SUBSCRIPTION OF ADVERTISEMENT RECE IVED FROM INDIA AND ABROAD. IN RESPECT OF CLAIM OF DEDUCTION U/S 80HHC, THE AO HAS NOT MADE ANY ENQUIRY. THE PAPER BOOK FILED BEFORE US DO NOT INDICATE ANY LETTER FIL ED BEFORE THE AO TO SHOW THAT AO RAISED THE QUERY IN RESPECT OF QUANTUM OF DEDUCTION ALLOW ABLE U/S 80HHC OF THE ACT. THE ASSESSEE IS RECEIVING FOREIGN EXCHANGE ON ACCOUNT O F SUBSCRIPTION AND ADVERTISEMENT. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE AO H AS FORMED HIS OPINION ON THE ISSUE THAT DEDUCTION U/S 80HHC IS ALSO AVAILABLE ON ADVERTISEM ENT. HENCE, IT IS NOT THE CASE OF CHANGE OF OPINION. MOREOVER, THE TRIBUNAL WHILE DEC IDING THE APPEAL FOR THE ASSESSMENT YEAR 1989-90 AND 1990-91 HAS TAKEN INTO ACCOUNT THE REOPENING FOR THE ASSESSMENT YEAR 1989-90. THE TRIBUNAL HAS PROCEEDED ON THE GROUND T HAT REOPENING IS BEYOND FOUR YEARS. IT IS TRUE THAT FOR ASSESSMENT YEAR 1990-91, THE NO TICE U/S 148 WAS ISSUED WITHIN FOUR YEARS BUT THE APPEAL WAS DECIDED BY CONSIDERING THE FACTS FOR THE ASSESSMENT YEAR 1989-90.THE EXPLANATION TO SECTION 147 GIVES THE INSTANCE WHERE THE INCOME CHARGEABLE TO TAX IS TO BE CONSIDERED TO BE DEEMED TO HAVE ESCAPED ASSESSMENT. THE RELEVANT CLAUSE OF EXPLANATION 2 (C ) (IV) IS AS UNDER:- WHERE AN ASSESSMENT HAS BEEN MADE, BUT - 14 (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR AN Y OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED. 2.12 THE LD. AR HAS CONTENDED BEFORE US THAT ON THE BASIS OF THE PRINCIPLE OF CONSISTENCY, THE ORDER OF THE TRIBUNAL SHOULD BE FO LLOWED. SO FAR AS ASSESSMENT YEAR 1989-90 IS CONCERNED, THE FACTS ARE DIFFERENT FROM THE FACTS IN THE INSTANT CASE BECAUSE IN THAT ORDER THE NOTICE WAS ISSUED AFTER FOUR YEARS F ROM THE END OF THE ASSESSMENT YEAR. FOR ASSESSMENT YEAR 1990-91, THE LD. AR CONTENDED BEFOR E THE TRIBUNAL THAT DEDUCTION U/S 80HHC WAS ALLOWED AFTER DETAILED DISCUSSION VIDE OR DER DATED 27-02-1991. WE ARE NOT AWARE AS TO HOW SUCH FACTS WERE GIVEN BEFORE THE T RIBUNAL BECAUSE THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 1990-91 WHICH IS AVAILABLE AT PAGES 89 TO 90 OF THE PAPER BOOK DOES NOT CONTAIN ANY DISCUSSION. THE DISCUSSION HAS BEEN MADE IN THE REASSESSMENT ORDER. THUS THE FACTS FOR THE ASSESSMENT YEAR 1999-91 AS C ONTENDED BEFORE THE TRIBUNAL WERE DIFFERENT FROM THE FACTS OF THE PRESENT ASSESSMENT YEAR. DURING THE ASSESSMENT YEAR UNDER CONSIDERATION, THERE HAS BEEN NO DISCUSSION OR THE AO HAS NOT MADE ANY QUERY IN RESPECT OF QUANTUM OF DEDUCTION. WE THEREFORE, HOLD THAT T HE REOPENING IS VALID. 3.1 THE SECOND GROUND OF APPEAL OF THE ASSESSEE IS IN RESPECT OF DISALLOWANCE OF DEDUCTION U/S 80HHC TO THE EXTENT OF RS. 4,58,203/- . 3.2 WE HAVE HEARD BOTH THE PARTIES. THE DEDUCTION U /S 80HHC IS ALLOWABLE IN CASE THE ASSESSEE IS ENGAGED IN THE BUSINESS OF EXPORT OUT O F INDIA OF ANY GOODS OR MERCHANDISE. THUS THE PRIMARY REQUIREMENT IS THAT ASSESSEE SHOUL D BE ABLE TO EARN FOREIGN EXCHANGE AND SHOULD EXPORT OUT OF INDIA OF ANY GOODS OR MERC HANDISE. SO FAR AS SUBSCRIPTION IS CONCERNED, THE FOREIGN EXCHANGE IS EARNED ON ACCOUN T OF EXPORT OF GOODS. HOWEVER, THE FOREIGN EXCHANGE RECEIVED ON ACCOUNT OF ADVERTISEM ENT IS NOT ON ACCOUNT OF ANY MERCHANDISE OR EXPORT OF GOODS. IT IS TRUE THAT THE PRINTING OF JOURNALS OR PUBLICATIONS 15 MEANS MANUFACTURE. THE ASSESSEE IS NOT EARNING FOR EIGN EXCHANGE IN RESPECT OF ADVERTISEMENT ON THE EXPORT OF SUCH JOURNALS. THE F OREIGN EXCHANGE IS RECEIVED ON ACCOUNT OF ADVERTISEMENT APPEARING IN THE JOURNAL. IF THE ASSESSEE RECEIVED FOREIGN EXCHANGE FROM THE SERVICES PROVIDED TO THE FOREIGN TOURISTS OR FROM EXPORT OF COMPUTER SOFTWARE OR FROM EXPORT OF FILM, SOFTWARE ETC. THEN DEDUCTION ARE ALLOWABLE U/S 80HHD, 80HHE AND 80HHF. THE LD. CIT(A) HAS MENTIONED THAT ISSUE OF ALLOWABILITY OF DEDUCTION U/S 80HHC ON ACCOUNT OF ADVERTISEMENT CH ARGES HAS BEEN CONSIDERED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF D IAMOND WORLD VS. CIT 267 ITR 466 AND THE DECISION IS AGAINST THE ASSESSEE. 3.3 THE LD. CIT(A) HAS ALSO REFERRED TO THE DECISIO N ITAT DELHI SPECIAL BENCH IN THE CASE OF INTERNATIONAL RESEARCH PARK LABORATORIES LT D., 212 ITR 81. THE LD. CIT(A) AT PAGE 12 AND 13 HAS REFERRED TO THE OBSERVATIONS OF THE HON'BLE JURISDICTIONAL HIGH COURT. SINCE WE ARE IN FULL AGREEMENT WITH THE LD. CIT(A), THEREFORE, IT IS NOT NECESSARY TO REPRODUCE THOSE OBSERVATIONS. THE ISSUE BEFORE US S TANDS DECIDED AGAINST THE ASSESSEE BY THE HON'BLE JURISDICTIONAL HIGH COURT. THEREFORE, W E HOLD THAT THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT THE AO WAS JUSTIFIED IN D ISALLOWING THE DEDUCTION U/S 80HHC TO THE EXTENT OF RS. 4,58,203/-. 3.4 THE HON'BLE APEX COURT IN THE CASE OF CIT VS. K .V. PILLAI, 63 ITR 411 HELD THAT TRIBUNAL DOES NOT ACT ILLEGALLY OR IRREGULARLY IN N OT REPEATING THE GROUNDS OF THE FIRST APPELLATE AUTHORITY ON WHICH DECISION WAS GIVEN AGA INST THE ASSESSEE OR THE DEPARTMENT WHEN THE APPELLATE TRIBUNAL FULLY AGREES WITH THE V IEW EXPRESSED BY FIRST APPELLATE AUTHORITY. IN THE INSTANT CASE, WE FULLY AGREE WITH THE VIEWS EXPRESSED BY THE FIRST 16 APPELLATE AUTHORITY IN RESPECT OF NON-ALLOWABILITY OF DEDUCTION U/S 80HHC ON THE AMOUNTS RECEIVED TOWARDS ADVERTISEMENT IN THE PUBLI CATION PUBLISHED BY THE ASSESSEE. 4.1 THE THIRD GROUND OF APPEAL OF THE ASSESSEE IS T HAT THE LOWER AUTHORITIES HAVE ERRED IN CHARGING INTEREST U/S 234B AT RS. 3,94,240/-. 4.2 THE LD. AR HAS REFERRED TO THE DECISIONS OF HON 'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MANNALAL NIRMAL KUMAR, 198 ITR 556 AND CIT VS. GHEWAR CHAND SONI, 263 ITR 650. 4.3 WE HAVE HEARD BOTH THE PARTIES. THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF GHEWAR CHAND SONI (SUPRA) IS NOT APP LICABLE BECAUSE THE PROVISIONS HAS BEEN AMENDED W.E.F. 01-04-1981. WHILE IN THE CASE O F GHEWAR CHAND SONI (SUPRA), THE ASSESSMENT YEAR WAS 1988-89 AND THE ISSUE WAS IN RE SPECT OF CHARGING OF INTEREST U/S 139(8). HENCE, THIS DECISION IS OF NO HELP TO THE A SSESSEE. SIMILARLY, THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF MA NNALAL NIRMAL KUMAR (SUPRA) IS FOR THE ASSESSMENT YEAR 1964-65. THIS DECISION IS ALSO OF NO HELP TO THE ASSESSEE. ONE HAS TO CONSIDER THE PROVISIONS OF SECTION 234B. THE PROVIS ION HAS CLEARLY SPECIFIED THAT INTEREST CAN BE CHARGED IN REASSESSMENT. THE HON'BLE JURISDI CTIONAL HIGH COURT IN THE CASE OF 322 ITR 444 HAS HELD THAT CHARGING OF INTEREST U/S 234A, 234B AND 234C ARE MANDATORY. THE HON'BLE APEX COURT IN THE CASE OF CIT VS. ANJUM M.H. GHASWALA 251 ITR 1 HAS HELD THAT INTEREST U/S 234A, 234B AND 234C ARE MAND ATORY. WE THEREFORE, HOLD THAT INTEREST 234B IS MANDATORY AND IS TO BE COMPUTED AS PER SECTION 234B(3) OF THE ACT AS IT IS A CASE OF REASSESSMENT. 5.1 THE FOURTH GROUND OF THE ASSESSEE IS AGAINST CH ARGING OF INTEREST U/S 234C AT RS. 460/-. 17 5.2 WE HAVE HEARD BOTH THE PARTIES. THE INTEREST U/ S 234C IS CHARGEABLE ON THE RETURNED INCOME AND SUCH INTEREST IS ALSO MANDATORY 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16-11 -2011. SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED; 16/11/2011 *MISHRA COPY FORWARDED TO :- 1. SMT. ASHA KALA W/O SHRI VIVEK KALA, JAIPUR 2. THE ACIT , CIRCLE- 3 (1), JAIPUR 3. THE LD. CIT BY ORDER 4. THE LD. CIT(A) 5. THE LD.DR 6. THE GUARD FILE (ITA NO.37/JP /11) A.R, ITAT, JAIPUR 18 19