THE ITO, -2, Itarsi V. M/S. PANDAV WAREHOUSING CORPORATION, Hoshagabad

ITA 395/IND/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5753 (ITAT-INDORE)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 03-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S GAUTAM
• Keywords: Tangible material; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO. 395/IND/2015 A.Y. : 2006-07 ITO WD.2, ITARSI M/S.PANDAV WAREHOUSING CORPORATION, VS. PIPARIYA, DISTRICT HOSHANGABAD APPELLANT RESPONDENT PAN NO. AAIFR0004H A PPELLANT S BY : SHRI G.S.GAUTAM, DR RESPONDENT BY : NONE O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-I, BHOPAL, DATED 17.03.2015, FOR THE ASSE SSMENT YEAR 2006-07. 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUND :- DATE OF HEARING : 29.12.2015 DATE OF PRONOUNCEMENT : 08 .0 2 .2016 ITO WD.2, ITARSI VS. M/S.PANDAV WAREHOUSING CORPOR ATION, HOSHANGABAD I.T.A.NO.395/IND/2015 - A.Y.2006-07 2 2 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS JUSTIFIED IN HOLDING T HAT THE INITIATION OF REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT WAS BAD IN LAW. 3. I FIND THAT THIS IS A COVERED ISSUE AND THE LD. CIT (A) HAS DISMISSED THE APPEAL BY OBSERVING AS UNDER :- THE AO HAD INITIATED REASSESSMENT PROCEEDING JUST TO REVIEW THE ASSESSMENT ORDER MADE, WHICH IS NOT PERMISSIBLE U/S 147 OF THE ACT. THE AO HAD NOT BROUGHT ANY TANGIBLE MATERIAL IN THE REASONS RECORDED ON THE BASIS OF WHICH HE CAME TO THE CONCLUSION THAT THE APPELLANT HAD NOT DISCLOSED FULLY AND TRULY ALL MATERIAL FACTS IN REGARD TO CLA IM OF DEDUCTION U/S 80IB(11A) OF THE ACT. THE REOPENING OF AN ASSESSMENT U/S 147 OF THE ACT IS NOT PERMITTED MERELY ON THE GROUND THAT THERE IS CHANGE IN THE VIEW OF THE AO AND HE SUBSEQUENTLY BELIEVES THAT EARLIER VIEW WAS INCORRECT. IT MAY BE NOTED TH AT REASSESSMENT PROCEEDINGS WILL BE INVALID IN CASE TH E ITO WD.2, ITARSI VS. M/S.PANDAV WAREHOUSING CORPOR ATION, HOSHANGABAD I.T.A.NO.395/IND/2015 - A.Y.2006-07 3 3 ASSESSMENT ORDER ITSELF RECORDS THAT THE ISSUE WAS RAISED AND WAS DECIDED IN FAVOUR OF THE ASSESSEE. THE REASSESSMENT PROCEEDINGS IN SUCH A CASE WILL BE HIT BY THE PRINCIPLE OF CHANGE OF OPINION. IN THI S REGARD REFERENCE CAN BE MADE TO THE DECISION IN THE CASE OF CIT VS. KELVINATOR OF INDIA LIMITED, (2010) 187 TAXMANN 312 ( S.C.). THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND LEGAL POSITION ON TH E ISSUE INVOLVED, I AM OF CONSIDERED VIEW THAT THE INITIATION OF REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT FOR ASSESSMENT YEAR 2006-07 BY ISSUING NOTICE U/S 148 OF THE ACT WAS BAD IN LAW. THUS, THE IMPUGNED NOTICE U/S 148 OF THE ACT DATED 5.3.2012 FOR ASSESSMENT YEAR 2006-07 AS WELL AS ALL PROCEEDINGS PURSUANT THERETO INCLUDING THE REASSESSMENT ORDER U/S 147 OF THE ACT DATED 18.01.2013 ARE INVALID. HENCE, THE REASSESSMENT ORDER U/S 147 OF THE ACT DATED 18.1.2013 IS ANNULLED. ITO WD.2, ITARSI VS. M/S.PANDAV WAREHOUSING CORPOR ATION, HOSHANGABAD I.T.A.NO.395/IND/2015 - A.Y.2006-07 4 4 4. NOBODY APPEARED ON BEHALF OF THE ASSESSEE. I HAVE HEARD THE LD. DR. 5. I FIND THAT THIS ISSUE IS COVERED BY THE DECISION O F HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KELVIN ATOR OF INDIA LIMITED, (2010) 187 TAXMANN 312 ( S.C.). RESP ECTFULLY FOLLOWING THE DECISION OF HON'BLE SUPREME COURT, I DISMISS THE APPEAL OF THE REVENUE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. THIS ORDER HAS BEEN PRONOUNCED IN THE OP EN COURT ON 8 TH FEBRUARY, , 2016, SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 8 TH FEBRUARY, 2016. CPU* 4.14