PUNRASAR JUTE PARK LIMITED, PURNEA V. CIT, PURNEA

ITA 432/PAT/2024

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 3536 (ITAT-PATNA)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-06-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 26-05-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Difference of opinion; Change of opinion; Unexplained cash credit; Depreciation; Reopening of assessment; Accommodation entries; Reason to believe; Tangible material
• Section: 147; 148; 143(3); 142(1); 143(2); 143(1); 153; 68; 133(6); 139; 145

Judgement Text

ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA-PATNA ‘e-COURT’, KOLKATA [Hybrid Court Hearing] Before Shri Rajpal Yadav, Vice-President (KZ) & Dr. Manish Borad, Accountant Member I.T.A. No. 432/PAT/2024 Assessment Year: 2015-2016 Punrasar Jute Park Limited,.....................Appellant Maranga Industrial Growth Centre, Purnea, Maranga-854301, Bihar [PAN:AAFCP0513P] -Vs.- Income Tax Officer,.....................................Respondent Ward-3(1), Purnea, Income Tax Office, Near jail Chowk, NH-31, Purnea, Bihar-854301 Appearances by: Shri S.K. Tulsiyan, Advocate and Mita Rizvi, CA, appeared on behalf of the assessee Shri Ashwani Kr. Singal, JCIT, appeared on behalf of the Revenue Date of concluding the hearing : June 20, 2024 Date of pronouncing the order : September 05, 2024 O R D E R Per Dr. Manish Borad, Accountant Member:- The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 2 National Faceless Appeal Centre (NFAC), Delhi dated 17 th April, 2024 passed for Assessment Year 2015-16. 2. The assessee has taken the following grounds of appeal:- (1) That the AO erred in invoking sec. 147 of the Act beyond four years from the end of the relevant assessment year reopening a completed assessment under section 143(3) of the Act as there was no failure on the part of the assessee to disclose fully and truly all material fact during original assessment. (2) That the proviso to section 147 of the Act prohibits reopening of assessment if the escapement is not due to the failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment for the assessment year. (3) That the loan received by the assessee during the year being subject matter of enquiry u/s.142(1) of the Act and u/s.142(2) of the Act and that the assessment was completed after being completely satisfied with the result of such enquiry by the AO in the original assessment making the proceeding u/s. 147 of the Act totally illegal and without jurisdiction. (4) That the AO failed to provide any material either along with the reasons recorded or during the assessment to bring on record any fresh information relating to the loan received by the assessee and considered in the original assessment u/s. 143(3) of the Act. (5) That the impugned proceeding u/s. 147 of the Act is not only illegal but was based on change of opinion on same set of material and therefore the entire proceeding is vitiated and bad in law. (6) That the Ld. AO further erred in completing the assessment u/s. 147 of the Act making addition of the loan of Rs.3,00,00,000/- duly recorded Rs.93,60,000/- in regular books of accounts when identity, creditworthiness and genuineness of transaction was already proved beyond doubt. 3. Since the assessee has raised the legal ground challenging the validity of reopening under section 147 of the Income Tax Act, ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 3 we first take up this legal issue as it goes to the root of the proceedings challenged before us. 4. Facts in brief are that the assessee is a Company engaged in the business of manufacturing and trading of jute products. E- return for assessment year 2015-16 submitted on 31.10.2015 declaring loss of Rs.8,41,773/-. After the case being processed under section 143(1) of the Act, it was selected for limited scrutiny for two reasons- (i) sales turnover mismatch; (ii) unsecured loans and the same was followed by issuance of valid notices under sections 143(2) and 142(1) of the Act. During the course of assessment proceedings, ld. Assessing Officer asked the assessee to explain unsecured loans received at Rs.2,00,00,000/- and Rs.35,00,000/- from M/s. Jahangirabad Finance Pvt. Limited and M/s. Multiplier Enterprises Pvt. Limited respectively. The assessee furnished relevant details to the satisfaction of the ld. Assessing Officer including copy of confirmation, income tax return, Bank account statement, audit report etc. and even the notice issued under section 133(6) of the Act to the loan creditor companies were duly complied. Finally, assessment under section 143(3) of the Act completed on 27.12.2017 assessing income at Rs.60,820/-. 5. Subsequently based on the information from DDIT (Inv.), Kolkata, where there is a mention of third party, namely M/s. Ruby Tracom Pvt. Limited, notice under section 148 of the Act was issued but on account of COVID 19 pandemic, the show-cause ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 4 notice was finally issued on 23.03.2022 proposing an addition to the tune of Rs.3,00,00,000/- on account of unsecured loans alleged to be received at Rs.2,00,00,000/- from M/s. Jahangirabad Finance Pvt. Limited, Rs.35,00,000/- from M/s. Multiplier Enterprises Pvt. Limited and Rs.65,00,000/- from M/s. Shree Gouri Shankar Jute Mill. The assessee filed its objection to the impugned additions stating that no unsecured loan has been received during the relevant financial year from M/s. Shree Gouri Shankar Jute Mill, but share capital was received from this concern and that the remaining cash creditors have already been examined by ld. Assessing Officer in limited scrutiny proceeding. But totally disregarding the contention of the assessee, ld. Assessing Officer completed the assessment under section 145 read with section 145 of the Act on 31.03.2022 making addition of Rs.3,00,00,000/- under section 68 of the Act for alleged unexplained cash credit. 6. The assessee challenged the reopening being bad in law and illegal before the ld. CIT(Appeals) stating that all the information relating to the alleged cash credits have been examined by the ld. Assessing Officer in the proceeding under section 143(3) of the Act and there being no fresh information /material with the ld. Assessing Officer and that the reopening is merely a case of change of opinion and, therefore, deserves to be quashed. However, ld. CIT(Appeals) was not satisfied and he held that reopening is valid. Now the assessee is in appeal before the Tribunal. ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 5 7. Ld. Counsel for the assessee vehemently argued referring to the written submissions placed on record in which submissions for Grounds No. 1 to 5 have been made for the invalid invocation of section 147 of the Act because it is beyond four years from the end of the relevant assessment year and there is no failure on the part of the assessee to disclose fully and truly all material facts during original assessment. The relevant part of the same reads as under:- Ground nos.1 to 5: Invocation of sec.147 of the Act beyond four years from the end of the relevant assessment year reopening a completed assessment u/s.143(3) of the Act in absence of any failure on the part of the assessee to disclose fully and truly all material facts during original assessment. As stated supra, originally, the assessee’s case was selected under Limited scrutiny assessment through CASS for the reason “Sales Turnover Mismatch and Unsecured Loans”. Copy of the CASS selection reason enclosed at page 1 of the P/b. Thereafter, notices u/s. 143(2) of the Act and u/s. 142(1) of the Act were issued and served upon the assessee requiring it to produce sufficient documents in the form of audit report, loan confirmations, complete name and addresses of the loan-creditors, establishing the genuineness of the loan creditors from whom the assessee received loans during the relevant financial year. In response to the above, the AR of the assessee submitted that during the relevant financial year, unsecured loans were received from two parties viz. M/s. Jahangirabad Finance Pvt. Ltd. amounting to Rs.2,00,00,000/- and M/s. Multiplier Enterprises Pvt. Ltd. amounting to Rs.35,00,000/-. Further, copies of confirmation, IT return, bank account statement, audit report etc. of the loan creditors were all submitted and verified by the AO before completion of the assessment u/s.143(3) of the Act. Further, to verify the genuineness of the loan ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 6 transactions, the AO issued notices u/s. 133(6) of the Act to the loan creditor companies. Moreover, the loanee companies were also asked to furnish complete details of the promoters. Finally, after verification of all the above, the AO completed the assessment for the relevant assessment year u/s.143(3) of the Act on 27/12/2017 at an assessed income of Rs.60,820/-, wherein, the genuineness of the unsecured loan transactions received during the relevant financial year were all accepted. Order copy enclosed at page nos. 2-4 of the P/b. Thereafter, the AO issued notice u/s.148 of the Act on 30/03/2021 which was beyond a period of four years from the end of the relevant assessment year i.e. AY 2015-16. It may be noted here that in the "reasons to believe" as reproduced in the reassessment order dated 30/03/2022 passed u/s. 147 of the Act, the AO had merely referred to the information that was received by him from the DDIT (Investigation), U-2(2), Koi, wherein discussion about some third party i.e. M/s. Ruby Tracom Pvt. Ltd. has been made and conclusion has been arrived that the assessee was a beneficiary of the accommodation entries and had received a sum of Rs.2,50,00,000/- from a shell company. Accordingly, the AO, without any basis, alleged that the assessee has failed to make full and true disclosure of the facts in his return or during the course of assessment proceedings u/s. 143(3) of the Act. At this juncture, it would be of relevance to bring attention to erstwhile sec. 147 of the Income Tax Act, 1961, as applicable for the relevant assessment year, relevant extract of which reproduced as under: "If the Assessing Officer, has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 7 proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year): Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year. ” As seen from the above, the first proviso to sec. 147 of the Act prohibits any action under the above section after the expiry of four years from the end of the relevant assessment year, except in circumstances specified therein. One of such circumstances permitting action under this section beyond four years is that the income chargeable to tax should have escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, for that assessment year. It thus follows from the above that as per the "first proviso" to section 147 of the Act the case of the assessee could have been validly reopened only where the income chargeable to tax had escaped assessment for the failure on the part of the assessee to disclose fully and truly all material facts necessary for his ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 8 assessment. In this context, the question of "full and true disclosure of material facts" assumes importance. Admittedly, it is a matter of fact as borne from record that the original assessment in the case of the assessee was framed by the A.O u/s. 143(3) of the Act, dated 27/12/2017. Notice u/s.148 of the Act was thereafter issued by the A.O on 30/03/2021. Accordingly, as the case of the assessee was reopened beyond a period of 4 years from the end of the relevant assessment year, therefore, as per the "first proviso" to section 147 of the Act the case could have been validly reopened only where the income chargeable to tax had escaped assessment for the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. However, a perusal of the aforesaid "reasons to believe" [as reproduced in the reassessment order dated 30/03/2022] reveals that the case of the assessee was reopened for the reason that there was information received from the DDIT (Investigation), U-2(2), Kol, wherein discussion about some third party i.e. M/s. Ruby Tracom Pvt. Ltd. has been made and it is inferred that the assessee was a beneficiary of the accommodation entries. Hence, clearly, the case of the assessee had not been reopened for the reason that certain income chargeable to tax had escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all material facts that were necessary for his assessment and thus, as per the mandate of the "first proviso" to section 147 of the Act the concluded assessment of the assessee could not have been validly reopened beyond a period of four years from the end of the relevant assessment year. ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 9 Ld. Counsel for the assessee has referred and relied to plethora of judgments which will be dealt subsequently if found to be applicable on the issue raised before us. 8. On the other hand, ld. D.R. vehemently argued supporting the order of ld. CIT(Appeals). 9. We have heard the rival contentions and perused the material placed before us. Validity of notice under section 148 and reopening proceedings under section 147 of the Act are in challenge before us. The crux of the submissions of ld. Counsel for the assessee is that the alleged reopening is bad in law and illegal because it has been carried out beyond four years, which is merely based on change of opinion because all details relevant to the impugned addition already stands examined by the ld. Assessing Officer in the course of regular assessment proceedings. Even on perusal of the record, we notice that originally case of the assessee was selected for limited scrutiny and one of the reasons for limited scrutiny was “unsecured loans”. The assessee received unsecured loans from two parties, namely M/s. Jahangirabad Finance Pvt. Limited Rs.2,00,00,000/- and from M/s. Multiplier Enterprises Pvt. Limited Rs.35,00,000/-. Since the case of the assessee was selected for limited scrutiny, ld. Assessing Officer deeply focused only on the reasons for which scrutiny proceedings were carried out. Ld. Assessing Officer in the proceeding under section 143(3) of the Act has extensively examined the identity and creditworthiness of the two loan providers and genuineness of the transactions for which necessary details were submitted by the ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 10 assessee in the form of copy of confirmation, income tax return, Bank account statement, audit report etc. It is also observed that ld. Assessing Officer issued notices under section 133(6) of the Act to both the loan creditor companies to which sufficient compliance was made along with the documents asked for by the ld. Assessing Officer. In nutshell, genuineness of the unsecured loan received by the assessee during the relevant financial year stood examined by the ld. Assessing Officer in the assessment proceeding u/s 143(3) of the Act. Ld. Assessing Officer issued notice under section 148 of the Act only on the basis of information pertaining to third party i.e. M/s. Ruby Tracom Pvt. Limited, which is alleged to be a shell company. The ld. Assessing Officer in the reasons recorded has observed that M/s. Ruby Tracom Pvt. Limited is not having any actual business and is an accommodation entry provider company used for layering of funds. Now it is interesting to note that the assessee has not entered into any transaction with M/s. Ruby Tracom Pvt. Limited and this fact even not disputed by the ld. Assessing Officer. But even then, ld. Assessing Officer has proceeded to carry out reassessment proceeding u/s 147 of the Act. In the reassessment proceeding, ld. Assessing Officer along with referring to unsecured loans received from M/s. Jahangirabad Finance Pvt. Limited and M/s. Multiplier Enterprises Pvt. Limited (as referred above) has also referred to unsecured loan of Rs.65,00,000/- received from M/s. Shree Gouri Shankar Jute Mill. In support of his contention, the ld. Counsel for the assessee submitted that no unsecured loan has been received during the year from M/s. Shree Gouri Shankar Jute Mill, ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 11 rather share capital is received from this company. This fact demonstrates that reopening is based on vague reasons. 10. On the given set of facts, where the alleged unsecured loan/ cash creditors have already been examined by the ld. Assessing Officer in the regular assessment proceedings u/s 143(3) of the Act and there is no transaction at all between third party, i.e. M/s. Ruby Tracom Pvt. Limited and assessee-company, the reopening proceedings cannot be held to be valid because ld. Assessing Officer has not referred to any material which the assessee has not fully and truly disclosed in its return of income. At this juncture, we would like to refer to the relevant aspect of section 147 of the Act (which has been referred in the preceding para), and the same reads as under:- "If the Assessing Officer, has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year): Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 12 the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year. ” 11. As seen from the above, the first proviso to sec. 147 of the Act prohibits any action under section 147 after the expiry of four years from the end of the relevant assessment year, except in circumstances specified therein. One of such circumstances is that the income chargeable to tax should have escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, for that assessment year and if there is no such failure on the part of assessee then, reopening is not valid. 12. We find that in the instant case, reopening has been carried out beyond four years, the assessee has already been scrutinized under section 143(3) of the Act for the alleged transactions and there is no transaction with alleged third party referred in the reasons recorded. Also Ld. Assessing Officer failed to bring on record any evidence to prove that there is an escapement of income on account of the failure on the part of assessee to disclose fully and truly all material facts necessary for the assessment. Therefore, under the given facts and circumstances of the case, reopening in the instant case is merely on the basis of change of ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 13 opinion and there is no proper application of mind by the ld. Assessing Officer, because he had all necessary records with him, which ought to have been examined before initiating the reopening proceeding by issuance of notice under section 148 of the Act and, therefore, in our considered view the reopening u/s 147 of the Act is invalid and bad in law and thus deserve to be quashed. We find support from the judgment of the Hon’ble Delhi High Court in the case of Haryana Acrylic Manufacturing Co. v. CIT reported in 308 ITR 38 (Del) wherein the hon’ble High Court had observed, that in any case where the reasons did not even contain an allegation that the escapement of income had occasioned due to failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment, then, the A.O would be barred from reopening the assessment already framed. Relevant extract of the judgment reproduced as under: "Action under section 147 of the Income-tax Act, 1961,can be taken after the expiry of four years from the end of the relevant assessment year only if any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee (a) to make a return under section 139 or in response to a notice under sub-section (1) of section 142 or section 148 , or (ii) to disclose fully and truly all material facts necessary for his assessment, for that assessment year. The proviso to section 147 carved out an exception from the main provisions of section 147. If a case were to fall within the proviso, whether or not it was covered under the main provisions of section 147 would not be material. Once the exception carved out by the proviso came into play, the case would fall outside the ambit of section 147. However, no action can be taken under section 147 after the expiry of four years from the end of the relevant assessment year if the conditions that (a) an assessment ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 14 under sub-section (3) of section 143 or this section has been made for the relevant assessment year, and (b) unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee : (i) to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 , or (ii) to disclose fully and truly all material facts necessary for his assessment for that assessment year, are satisfied Merely having a reason to believe that income had escaped assessment is not sufficient to reopen assessments beyond the period of four years. The escapement of income must also be occasioned by the failure on the part of the assessee to disclose material facts fully and truly. This is a necessary condition for overcoming the bar set by the proviso to section 147. If this condition is not satisfied, the bar would operate and no action under section 147 could be taken. ................ Held, allowing the petition, (i) that the reasons recorded did not indicate the failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment year 1998-99. While in the reasons supplied to the petitioner there was no mention of the allegation that there was a failure on the part of the assessee to disclose fully and truly all material facts, in the reasons shown in the said form to the counter- affidavit there was a specific allegation that there was a failure on the part of the assessee to disclose fully and truly all material facts relating to accommodation entries raised from one of the companies to the extent of Rs. 5 lakhs. Thus, one of the conditions precedent for removing the bar against taking action after the said four year period remained unfulfilled. Consequently, the notice under section 148 based on the recorded reasons supplied to the petitioner as well as the consequent order were without jurisdiction as no action under section 147 could be taken beyond the four year period. ” ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 15 13. Further we find that Hon’ble Bombay High Court in the case of ANANTA LANDMARK PVT. LTD. v. DEPUTY COMMISSIONER OF INCOME-TAX AND O THERS reported in [2021] 439 ITR 168 (Bom), wherein it was held as under: “It is settled law that where the assessment is sought to be reopened after the expiry of a period of four years from the end of the relevant year, the proviso to section 147 of the Income-tax Act, 1961, stipulates a requirement that there must be a failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. In the notice of reassessment the Assessing Officer has to mention what was the tangible material to come to the conclusion that there is an escapement of income from assessment and that there has been a failure to fully and truly disclose material fact. After a period of four years even if the Assessing Officer has some tangible material to come to the conclusion that there is escapement of income from assessment, he cannot exercise the power to reopen unless he discloses what was the material fact which was not truly and fully disclosed by the assessee. A general statement that the escapement of income is by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment is not enough. The Assessing Officer should indicate what was the material fact that was not truly and fully disclosed to him.’’ 14. Further, we find support from the judgment of the Hon’ble Gujarat High Court in the case of Garden Silk Mills Ltd. v. Assistant Commissioner of Income Tax, Circle-1(1)(2) reported in [2021] 128 taxmann.com 3 (Gujarat) wherein it was held that where AO issued a reopening notice against assessee on ground that deduction ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 16 under section 80-IA(4)(iv) claimed and allowed on generation and sale of steam by assessee was to be disallowed, since all relevant material in relation to issue of deduction in respect of steam power generation was available on record before AO during original scrutiny assessment and there was no omission or failure to disclose truly and fully all primary material facts by assessee, impugned reopening notice issued after four years from end of relevant assessment year was unjustified. Relevant extract of the judgment reproduced as under: “It is a settled law that in order to assume jurisdiction under section 147, where the assessment has been made under section 143(3), two conditions are required to be satisfied; (a) The Assessing Officer must have reason to believe that the income chargeable to tax have escaped assessment; (b) such escapement occurred by reason of failure on the part of the assessee either to make a return of income under section 139 or in response to the notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all the material facts necessary for his assessment for that purpose. [Para 10] The writ applicant has challenged the reopening proceeding substantially on the grounds that (i) the proceedings initiated is mere a change of opinion on the part of the Assessing Officer as the issue already decided in the previous assessment order and (ii) no case can be reopened on account of the reasons recorded by the Assessing Officer which are subject matter of any appeal, reference or revision. [Para 11] ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 17 It is a settled law that a mere change of opinion cannot be a basis for reopening completed assessment where in the previous assessment proceedings the Assessing Officer has applied his mind and taken a conscious decision on a particular matter and issue. [Para 12] The case of the assessee-company was selected for scrutiny by issuing notices under sections 143(2) and 142. Questionnaires were issued to which the assessee company had responded by furnishing details and documents about the deduction under section 80-IA and finally the then Assessing Officer made the assessment and detail scrutiny order under section 143(3) was passed disallowing the deduction to certain extent of Rs. 3.65 crores from the total claim made under section 80-IA of Rs. 23.37 crores. The order was challenged before the Commissioner (Appeals) and same was allowed by deleting the addition of Rs. 3.65 crores. Thereafter, the Assessing Officer has issued impugned notice. [Para 14]. ...................... In the background of the aforesaid facts, the impugned action on the part of the respondent to issue notice is without authority of law mainly on the ground of change of opinion and the claim under section 80-IA in respect of time usage charge component is still pending for disposal before the second appellate authority. Therefore, the impugned notice as well as the proceeding are required to be quashed and set aside for the following reasons: (i) The then Assessing Officer while framing the assessment order under section 143(3) had raised the issue of deduction and in response to said issue, the assessee-company had furnished all the details/information along with the complete working ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 18 of profit and gains eligible for the claim and after considering all the primary materials, disclosed by the assessee-company, the erstwhile Assessing Officer assigned cogent reasons and discussed the issue at length and disallowed the claim of deduction in relation to profits and gain derived from the generation of steam. Now on the same set of facts and materials, the Assessing Officer formed the belief about the escapement of assessment which is nothing but mere a change of opinion on the facts which were already before the Assessing Officer while making the first assessment on which conscious application of mind is reflected from the proceedings. Therefore, on the issue of steam power, the relevant material was available on record, however, the then Assessing Officer failed to apply his mind to that material in making the assessment order, now in the present proceedings, again the Assessing Officer cannot take recourse to the provisions of section 147 for the failure of the Assessing Officer to apply his mind to the material which according to him is relevant. (ii) In view of the legal proposition and considering the facts and circumstances of the present case, it appears that on the issue of steam power, the succeeding Assessing Officer has different opinion and it seems to be re-look on the issue decided in previous assessment. The record indicates that special queries were raised on the issue oj allowances made under 80-IA. The calculation of deduction works out by the assessee- company was reflected in the audited books of account and it was not hidden. Therefore, the Assessing Officer could have possibly ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 19 with due diligence discover the incorrect allowances by drawing heavy inference. On the contrary, in the previous assessment proceedings, the Assessing Officer was duty bound to go through the issue of disallowances claimed on the basis of steam power generation, before completing the assessment. Therefore, now mere change of opinion cannot be basis for reopening completed assessment, where in the previous assessment proceedings, the then Assessing Officer has applied his mind and taken a conscious decision in respect of time usage charge component and partly disallowed the claim made under section 80-IA.” 15. Respectfully following the ratios laid down by the Hon’ble Courts referred hereinabove, we are inclined to hold that the notice under section 148 of the Act issued by the ld. Assessing Officer is illegal and invalid and, therefore, reopening proceedings carried out under section 147 of the Act are invalid. Thus, the reopening proceedings are hereby quashed and the legal issues raised by the assessee in Grounds no. 1 to 5 are allowed. Since we have already allowed the legal grounds, therefore, dealing with the other ground raised in this appeal is merely academic in nature. 16. In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on 05/09/2024. Sd/- Sd/- (Rajpal Yadav) (Manish Borad) Vice-President (KZ) Accountant Member Kolkata, the 5 th day of September, 2024 ITA No. 432/PAT/2024 (A.Y. 2015-2016) Punrasar Jute Park Limited 20 Copies to :(1) Punrasar Jute Park Limited, Maranga Industrial Growth Centre, Purnea, Maranga-854301, Bihar (2) Income Tax Officer, Ward-3(1), Purnea, Income Tax Office, Near jail Chowk, NH-31, Purnea, Bihar-854301 (3) Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi; (4) CIT - , Kolkata; (5) The Departmental Representative; (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.