Gland Pharma Limited, Hyderabad V. DCIT., Circle-2(3), Hyderabad, Hyderabad

ITA 45/HYD/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6358 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-06-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 08-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: A V RAGHURAM
• Keywords: Reopening of assessment; Depreciation; Additional depreciation; Period of limitation; Question of law; Difference of opinion; Time period of passing order; Change of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA NO.45/HYD/2015 : ASSESSMENT YEARS 2006-07 M/S. GLAND PHARMA LIMITED, , HYDERABAD (PAN AAACG 8036 B) V/S DY. COMMISSIONER OF INCOME-TAX CIRCLE 2(3), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.V.RAGHURAM RESPONDENT BY : SHRI K.J.RAO, DR DATE OF HEARING 23.6.2016 DATE OF PRONOUNCEMENT 06. 7.2016 O R D E R PER PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) II I, HYDERABAD DATED 13.10.2014 FOR THE ASSESSMENT YEAR 2005-06. 2. IN THE PRESENT APPEAL, ASSESSEE HAS INTER ALIA RAISED A LEGAL GROUND CHALLENGING THE JURISDICTION TO ISSUE NOTICE UNDER S.148 AND FRAME THE ASSESSMENT UNDER S.147 OF THE ACT BY WAY OF AN ADDITIONAL GROUND UNDER RULE 11 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. THE LEARNED AUTHORISED REPRESENTATIVE(AR) FOR THE ASSESSEE, AT THE OUTSET, CONTENDED THAT THE ASSESSING OFFICER HA S GROSSLY ERRED IN INVOKING THE PROVISIONS OF S.147/148 OF THE ACT, IN AS MUCH AS THE CONDITION PRECEDENT FOR ASSUMPTION OF JURISDICTIO N UNDER S.147/148 IS ABSENT IN THE PRESENT CASE. THE LEARNED AUTHORISED REPRESENTATIVE ITA NO.45/HYD/2015 M/S. GLAND PHARMA LIMITED . HYDERABAD 2 FURTHER EMPHASISED THAT THE ACTION TO REOPEN A COMP LETED ASSESSMENT UNDER S.147 HAS BEEN TAKEN BASED ON THE MATERIAL AL READY AVAILABLE ON RECORD AT THE TIME OF ORIGINAL PROCEEDING UNDER S.143(3). THUS, NO FRESH INVESTIGATION INTO THE FACTS IS REQUIRED TO A DJUDICATE UPON THE ADDITIONAL GROUND. 3. HAVING REGARD TO THE PLEA THAT THE ADDITIONAL G ROUND OF APPEAL RAISED BY THE ASSESSEE, INVOLVES ONLY A PURE QUESTION OF LAW ARISING OUT OF THE UNDISPUTED FACTS, WE DEEM IT FIT AND PROPER TO ADMIT THE ADDITIONAL GROUND OF APPEAL, IN THE LIGHT OF TH E DECISION OF THE APEX COURT IN THE CASE OF NTPC 229 ITR 383(SC). WE ACCOR DINGLY ADMIT THE SAME AND PROCEED TO DISPOSE OF THE SAME ON MERITS. 4. AS NOTED ABOVE, SINCE THE ASSESSEE BY WAY OF A DDITIONAL GROUND HAS CHALLENGED THE LEGALITY AND VALIDITY OF THE NOTICE ISSUED UNDER S.148 READ WITH S.147 OF THE ACT, WHICH GOES TO THE ROOT OF THE MATER, WE SHALL FIRST DISPOSE OF THIS ADDITIONAL G ROUND RAISED BY THE ASSESSEE, WHICH READS AS FOLLOWS- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE REOPENING OF ASSESSMENT BY INVOKING PROVISIONS OF SECTION 147/148 OF THE I.T. ACT IS BAD IN LAW IN AS MUCH AS THE REOPENING IS DONE BEYOND 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND THERE I S NO FAILURE ON THE PART OF THE ASSESSEE IN FURNISHIN G WHOLLY AND TRULY ALL MATERIAL FACTS. 5. THE RELEVANT FACTS GERMANE TO THE ISSUE ARE THA T THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSM ENT YEAR 2006-07 RELEVANT TO FINANCIAL YEAR 2005-06 ON 31.10.2006, D ECLARING TOTAL ITA NO.45/HYD/2015 M/S. GLAND PHARMA LIMITED . HYDERABAD 3 INCOME OF RS.10,43,94,849. THE RETURN WAS SELECTED FOR SCRUTINY BY ISSUING A NOTICE UNDER S.143(2) OF THE ACT, AND AN ORDER UNDER S.143(3) WAS PASSED ON 18.7.2008 ACCEPTING THE RETU RNED TOTAL INCOME. SUBSEQUENTLY, A NOTICE UNDER S.148 DATED 29 .03.2012 WAS ISSUED AND SERVED UPON THE ASSESSEE ON 30.03.2012. IN RESPONSE TO THE NOTICE UNDER S.148, THE ASSESSEE FILED A LETTER DATED 18.06.2012 AND FORMALLY REQUESTED THE ASSESSING OFFICER TO TRE AT THE ORIGINAL RETURN FILED ON 31.10.2006 AS COMPLIANCE OF THE AFO RESAID NOTICE. THE REASONS FOR ISSUING A NOTICE UNDER S.48 WERE ALSO D EMANDED BY THE ASSESSEE. IN RESPONSE THERETO, THE ASSESSING OFFIC ER FURNISHED THE REASONS RECORDED UNDER S.148(2), WHICH ARE REPRODUC ED HEREUNDER- (1) ON PERUSAL OF ANNEXURE-I ENCLOSED TO F ORM 3CD AN ADDL. DEPRECIATION ON PLANT & MACHINERY @ 20% AMOUNTING TO RS.31,30,542/- WAS SHOWN. BUT AS SEEN FROM THE STATEMENT SHOWING ADDITIONS TO FIXED ASSETS DURING THE FY 2005-06 THE PLANT & L'V1ACHINERY PURCHASED BETWEEN THE PERIOD APRIL AND SEPTEMBER IS TOTALLING TO RS.L,34,05,586/- ON WHICH THE ADDL. DEPRECIATION WORKS OUT TO ONLY RS.26 I 81,117J-. HENCE, THERE IS AN EXCESS CLAIM OF ADDL. DEPRECIATION OF RS.4,49,425/- WHICH IS TO BE DISALLOWED. \ (2) FURTHER THE ASSESSEE VIDE ITS LETTER DATED 17-07-2008 IN THE NOTE ON CAPITALIZATION OF FIXED ASSETS STATED THAT FOR C ONVENIENCE SAKE IT HAS CAPITALIZED THE PLANT & MACHINERY & BUILDINGS ON 31-03-2006 AND ACCORDINGLY CLAIMED THE DEPRECIATION. AS PER SCHEDULE-5 OF THE BALANCE SHEET THE PROJECT WORK-IN-PROGRESS AMOUNTED TO RS.2,33,39,263/- ONLY AND THE ADDITION TO PLANT & MACHINERY AMOUNTED TO RS.12,28,99,308/- WHICH MEANS THAT THE DIFFERENCE OF RS.9,95,60,045/- IS THE AMOUNT EXPEND ED FOR PURCHASE OF NEW PLANT & MACHINERY DURING THE CURRENT FINANCIAL YEAR. .IT IS ALSO SEEN FROM THE STATEMENT SHOWING ADDITIONS TO FIXED ASSETS DURING THE FY 2005-06 THAT THE PLANT & MACHINERY PURCHASED ON 31 ST MARCH, 2006 ITSELF IS RS.8,07,31,261/-. WHEN THE PLANT & MACHINERY IS PURCHASED ON 31 ST MARCH, 2006, THERE WILL NOT ARISE THE QUESTION OF INSTALLATION AND USAGE OF THE PLANT ON THE SAME DATE, AND HENCE THE CLAIM OF ADDITIONAL DEPRECIATION @ 10% FOR HALF YEAR SHOULD HAVE BEEN DISALLOWED. HENCE THERE IS AN EXCESS CLAIM OF ADD!. DEPRECIATION OF RS.80,73,126/-. 6. THE ASSESSING OFFICER WHILE REFRAMING THE ASSES SMENT UNDER S.143(3) READ WITH S.147 IN PURSUANCE OF NOTI CE UNDER S.148, DID NOT ACCEPT THAT ASSETS TO THE TUNE OF RS.2,25,3 8,723 WERE PUT TO ITA NO.45/HYD/2015 M/S. GLAND PHARMA LIMITED . HYDERABAD 4 USE BEFORE 31.3.2006 AS CLAIMED AND CONSEQUENTLY DI SALLOWED DEPRECIATION ALLOWANCE AT THE RATE OF 10% THEREON A MOUNTING TO RS.22,53,877. THE ASSESSED INCOME WAS THUS ENHANCE D BY THIS AMOUNT. 7. AGGRIEVED BY THE IMPUGNED RE-ASSESSMENT ORDER, ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE CIT(A), HOW EVER, CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 8. AGGRIEVED THERETO, THE ASSESSEE IS IN APPEAL BE FORE TRIBUNAL. 9. LEARNED AUTHORISED REPRESENTATIVE SHRI A.V.RAGH URAM, APPEARING FOR ASSESSEE, REFERRED TO THE REASONS REC ORDED AS NOTED ABOVE AND CONTENDED THAT THE ASSESSMENT WAS REOPENE D ON THE GROUND THAT DEPRECIATION AND ADDITIONAL DEPRECIATIO N WERE NOT ALLOWED CORRECTLY IN THE ORIGINAL ASSESSMENT PROCEEDINGS. L EARNED AR NEXT SUBMITTED THAT IN THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, ASSESSEE DULY FILED DETAILS OF ASSETS PROCURED AND CAPITALIZED, WHICH WERE SPECIFICALLY CALLED FOR AND ALL THE INVOICES C ONCERNING THE ASSETS PURCHASED WERE PRODUCED FOR VERIFICATION. HE ASSERT ED THAT THE ASSESSEE COMPANY BEING IN PHARMACEUTICAL INDUSTRY S TRICTLY COMPLIES WITH USFDA STANDARDS AND REQUIREMENTS AND MAINTAINS DOCUMENTATION PERTAINING TO THE INSTALLATION OF EQUIPMENT IN THE FORM OF INSTALLATION QUALIFICATION (IQ) DOCUMENTATIONS ETC. RELEVANT IQ DOCUMENTS AND ALSO BATCH RECORDS IN SOME CASES WERE PRODUCED AS E VIDENCE FOR INSTALLATION AND ASSETS PUT TO USE IN THE COURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS. THE LEARNED AR NEXT REFERRE D TO THE ORIGINAL ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE ACT D ATED 18.7.2008 AND VEHEMENTLY EXHORTED THAT THE ASSESSING OFFICER IN THE ORIGINAL ITA NO.45/HYD/2015 M/S. GLAND PHARMA LIMITED . HYDERABAD 5 ASSESSMENT ORDER HAS MADE CLEAR AVERMENTS TO THE E FFECT THAT THE ASSESSEE COMPANY HAS DULY COMPLIED WITH VARIOUS QUE RIES RAISED BY THE ASSESSING OFFICER AND PRODUCED BOOKS OF ACCOUNT S, FILED EXTRACTS OF THE LEDGERS/VOUCHERS IN SUPPORT OF THE DEPRECIATIO N CLAIMED AND FILED THE RELEVANT EXPLANATIONS/INFORMATIONS CALLED FOR. THE LEARNED AR WENT ON TO OBSERVE THAT THE ASSESSING OFFICER HAS CLEAR LY RECORDED A FINDING THAT IN THE COURSE OF THE ORIGINAL ASSESSMENT PROC EEDINGS, THE ASSESSEES AUTHORISED REPRESENTATIVE WAS ASKED TO P RODUCE INTER ALIA DETAILS OF CAPTILISATION OF FIXED ASSETS, WHICH WE RE DULY FURNISHED. THUS, AFTER THE VERIFICATION OF BOOKS OF ACCOUNT AN D RELEVANT INFORMATIONS FILED BY THE ASSESSEE AND AFTER DISCUS SIONS WITH THE ASSESSEE, THE ASSESSMENT WAS COMPLETED AND IMPUGNED DEPRECIATION ALLOWANCE AS CLAIMED WAS ALLOWED. IN THE LIGHT OF THESE FACTS, THE LEARNED AUTHORISED REPRESENTATIVE CONTENDED THAT NO TICE UNDER S.148 COULD NOT HAVE BEEN ISSUED AFTER FOUR YEARS FROM TH E END OF THE RELEVANT ASSESSMENT YEAR 2006-07. ACCORDINGLY, THE ACTION OF THE ASSESSING OFFICER IN ISSUING THE NOTICE UNDER S.147 AND ASSUMPTION OF JURISDICTION IS BAD IN LAW IN VIEW OF THE FIRST PR OVISO UNDER S.147 OF THE ACT. THE LEARNED AUTHORISED REPRESENTATIVE CONTEND ED THAT NO ALLEGATION AGAINST THE ASSESSEE THAT THERE IS A FAI LURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE MATERI AL FACTS NECESSARY FOR COMPLETING THE ASSESSMENT IS DISCERNIBLE IN THE REC ORDED REASONS. IN THE ABSENCE OF SUCH AN ALLEGATION, NOTICE UNDER S.1 48 IS WITHOUT JURISDICTION AND HENCE BAD IN LAW. 9.1. THE LEARNED AR FOR THE ASSESSEE NEXT CONTEND ED THAT THE DETAILS AND EVIDENCES FILED BEFORE THE ASSESSING OF FICER AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS WERE MERELY SOUGHT TO BE REVIEWED IN THE GUISE OF S.147, PROBABLY AT THE INSTANCE OF THE AUDIT PARTY. HE CONTENDED THAT THE PRESENT RE-OPENING OF ASSESSMEN T IS THE OUTCOME ITA NO.45/HYD/2015 M/S. GLAND PHARMA LIMITED . HYDERABAD 6 OF SUCH REVIEW OF THE ORIGINAL ASSESSMENT AND IS BASED ON A MERE CHANGE OF OPINION ON THE SAME FACTS WHICH IS ALSO N OT PERMISSIBLE IN LAW. FOR THIS PROPOSITION, HE RELIED UPON THE DECIS ION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF KELVINATOR INDIA LT D.(256 ITR 1) AS AFFIRMED BY THE HON'BLE SUPREME COURT (320 ITR 561) . 9.2. ON FACTS, THE LEARNED AR SUBMITTED THAT THE MACHINERY WERE ACTUALLY PUT TO USE AT DIFFERENT POINT OF TIME BEFORE 31.3.2006, BUT FOR CONVENIENCE, THE RELEVANT ACCOUNTING ENTRIE S IN THE BOOKS WERE MADE ON THE LAST DAY OF THE FINANCIAL YEAR. THE REL EVANT INVOICES DATED MUCH PRIOR TO 31.3.2006 WERE PLACED ON RECORD AT TH E TIME OF THE ORIGINAL PROCEEDINGS. HE THUS SUBMITTED THAT THE RE TROSPECTIVE ASSETS WERE ACTUALLY PUT TO USE DURING THE FINANCIAL YEAR AND DEPRECATION WAS RIGHTLY CLAIMED AS PER PROVISIONS OF THE ACT. THUS, THERE WAS NO WARRANT TO INVOKE THE PROVISIONS OF S.147 OF THE AC T IN THE CIRCUMSTANCES OF THE CASE. 10. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON TH E OTHER HAND, SUBMITTED THAT NO PROPER EXAMINATION OF FACTS WAS CARRIED OUT AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS WHILE A CCEPTING THE CLAIM OF DEPRECIATION ALLOWANCE. THEREFORE, THE MATERIAL FACTS WERE NOT FULLY DISCLOSED AND PLACED ON RECORDED TO ENABLE THE ASSE SSING OFFICER TO FORM RATIONAL OPINION ON THE ISSUE. THUS, THERE IS NO CASE FOR CHANGE OF OPINION AS MADE OUT BY THE LEARNED AUTHORISED RE PRESENTATIVE. HE THEREFORE PLEADED THAT LEGAL GROUND RAISED BY THE ASSESSEE CHALLENGING THE JURISDICTION UNDER S.147 IS NOT SUSTAINABLE IN LAW. 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS AND PERUSED THE REASONS RECORDED AND OTHER RELEVANT MAT ERIAL REFERRED TO BEFORE US. THE ASSESSEE HAS CHALLENGED THE JURISDIC TION USURPED BY THE ITA NO.45/HYD/2015 M/S. GLAND PHARMA LIMITED . HYDERABAD 7 ASSESSING OFFICER UNDER S.147 OF THE ACT INTER ALIA ON THE GROUND THAT THE EMBARGO PLACED BY THE FIRST PROVISO OF S.147 HA S NOT BEEN MET AND THEREFORE, THE ACTION TAKEN UNDER S.147 IS BEYOND T HE LIMITATION PERIOD PRESCRIBED. WE OBSERVE THAT THE RELEVANT ASSESSMENT YEAR IS 2007-08 AND THE ORIGINAL ASSESSMENT WAS DULY COMPLETED UNDE R S.143(3) FOR THE RELEVANT ASSESSMENT YEAR. WE FIND THAT THE NOT ICE UNDER S.148 WAS ISSUED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THUS, THE ACTION OF THE ASSESSING OFFICER UNDER S.147 IS REQUIRED TO BE TESTED ON THE TOUCHSTONE OF STRINGENT CONDITIONS PLACED UNDER FIRST PROVISO TO S.147 OF T HE ACT. IN THE AFORESAID FACTUAL BACKGROUND, WE PERUSED THE REASON S RECORDED AS NOTED ABOVE. ON A BARE PERUSAL, WE FIND CONSPICUO US ABSENCE OF ANY ALLEGATION THAT ANY INCOME CHARGEABLE TO TAX HAS ES CAPED ASSESSMENT BY THE REASON OF THE FAILURE ON THE PART OF THE AS SESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR A SSESSMENT. IN THE ABSENCE OF SUCH AN ALLEGATION, THE JURISDICTION ASS UMED UNDER S.148 TO REOPEN A COMPLETED ASSESSMENT IS CLEARLY VOID AB INITIO . WE DRAW SUPPORT FOR THIS PROPOSITION FROM THE FOLLOWING DEC ISIONS - - (A) CIT V/S. FORAMER FRANCE (264 ITR 566)(SC) (B) HINDUSTAN LEVER LIMITED V/S. R.B.WADKAR (268 ITR 332)(BOM) (C) MERCURY TRAVELS LIMITED . V/S. DY. CIT(258 ITR 533) (CAL) (D) JSRS UDYOG LIMITED & ORS .V/S ITO(313 ITR 321(DEL) (E) BOMBAY STOCK EXCHANGE LTD.V/S. DDIT(E)(361 ITR 160) (BOM) 12. WE ALSO SIMULTANEOUSLY NOTICE THAT THERE IS N O AVERMENT TO THE EFFECT AS TO WHAT MATERIAL FACTS NECESSARY FOR ASSESSMENT WERE DISCLOSED BY THE ASSESSEE IN THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS FULLY AS WELL AS TRULY. THE REASONS BEI NG JUSTICEABLE, ASSESSING OFFICER IS EXPECTED TO RECORD A FINDING T O THIS EFFECT IN THE ITA NO.45/HYD/2015 M/S. GLAND PHARMA LIMITED . HYDERABAD 8 RECORDED REASONS. ON THE CONTRARY, ASSESSEE ADMITTE DLY VIDE A LETTER [STATED TO BE LETTER DATED 17.07.2008] HAS SUBMITTE D IN THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, A NOTE ON CAPITALI ZATION OF FIXED ASSETS WHEREIN IT WAS INTER ALIA OBSERVED THAT IT IS FOR MERE CONVENIENCE THAT CAPITALIZATION ENTRY TOWARDS FIXED ASSETS WERE MADE ON THE LAST DAY OF THE YEAR AND DEPRECIATION ALLOWA NCE WAS CLAIMED THEREON. WE NOTICE FROM CORRESPONDENCE MADE WITH AS SESSING OFFICER AT THE TIME OF ORIGINAL PROCEEDINGS THAT THE RELEVA NT INVOICES AND INSTALLATION DONE FOR MACHINERY AND EQUIPMENTS, INS TALLATION QUALIFICATION (IQ) DOCUMENTATION WERE PRESENTED BEF ORE THE ASSESSING OFFICER. THE ASSESSING OFFICER PASSED THE ORIGINAL ASSESSMENT ORDER UNDER S.143(3) PRESUMABLY AFTER CONSIDERING THE DOC UMENTARY EVIDENCES PRODUCED TO SUBSTANTIATE THE ACTUAL PUTTI NG TO USE OF THE MACHINERY AND EQUIPMENT ETC. IT IS WELL SETTLED TH AT MATERIAL FACTS POSTULATES PRIMARY FACTS ONLY. THE SCOPE OF EXPRE SSION MATERIAL FACTS DOES NOT EXTEND TO COLLATERAL FACTS OR INFERENCES T O BE DRAWN BY ASSESSING OFFICER ON PRIMARY FACTS. REFERENCE IN T HIS REGARD MAY BE MADE TO THE DECISIONS OF SUPREME COURT IN THE CASE OF CALCUTTA DISCOUNT CO. LTD. (1961) 41 ITR 191(SC).; ASSOCIAT ED STONE INDUSTRIES (KOTAH) LTD. V/S. CIT(1997) 224 ITR 560( SC). ONCE ALL PRIMARY FACTS WHICH HAVE MATERIAL BEARING ON A QUES TION INVOLVED IN ASSESSMENT ARE DISCLOSED, THE ASSESSEE IS ABSOLVED FROM ITS PRIMARY OBLIGATIONS. THEREAFTER, IT IS FOR THE ASSESSING OF FICER TO CALL FOR FURTHER INFORMATION, IF HE SO CONSIDERS IT EXPEDIENT. IN THE INSTANT CASE, THE ASSESSING OFFICER WHILE RECORDING THE REASONS FOR I NITIATING ACTION UNDER S.147 HAS MERELY OBSERVED THAT CERTAIN PLANT AND M ACHINERIES WERE PURCHASED ON 31.03.2006 AND THUS INFERRED THAT QUE STION OF INSTALLATION AND USAGE OF THE PLANT ON THE SAME DAT E DOES NOT ARISE. THIS ASSERTION IS NOT SUSTAINABLE FOR TWO REASONS. FIRSTLY, THE ASSESSEE HAS DULY ADDRESSED THIS POINT BY WAY OF A SPECIFIC NOTE WHICH IS NOT ITA NO.45/HYD/2015 M/S. GLAND PHARMA LIMITED . HYDERABAD 9 SHOWN TO BE ERRONEOUS OR UNTRUE. SECONDLY, THE DOUB T CAST ON INSTALLATION AND PUT TO USE ON THE DATE OF PURCHASE ITSELF IS IN THE REALM OF AN INFERENCE AND NOT A SUBSTANTIVE FACT IN ITSEL F. THE REOPENING IS NOT PERMISSIBLE ON SUCH SHIFT IN INFERENCE BY ANOTH ER OFFICER AT A LATER STAGE. IT IS ALSO NOTICED THAT IN THE COURSE OF I N THE RE-ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS PROCEEDED TO RECORD HIS GRIEVANCE ON A DIFFERENT FOOTING. THE GRIEVANCE OF THE ASSESSING OFFICER AT THE LATER STAGE IN THE RE-ASSESSMENT PROCEEDINGS IS THAT CERTAIN DOCUMENTARY EVIDENCES FOR PRODUCTION IN THE FORM O F BATCH RECORDS TO SUBSTANTIATE THE ACTUAL PUTTING TO USE HAS NOT BEEN PRODUCED. THIS APPROACH TO REJECT THE DATE OF THE ASSET PUT TO USE IN OUR VIEW IS NOT JUSTIFIED. ADDITIONAL DOCUMENTS SUCH AS BATCH RECO RDS OF MACHINERIES EQUIPMENTS OR ASSEMBLY LINE, ETC. WOULD ONLY REINFO RCE THE CLAIM OF ASSESSEE PUTTING THESE MACHINERY TO USE, WHICH CANN OT BE REGARDED AS PRIMARY DOCUMENTS FOR SUCH CLAIM PER SE. THUS, THE OBJECTIONS ARE APPARENTLY ENVISAGED TOWARDS NON-FURNISHING OF COLL ATERAL FACTS IN DISTINCTION TO THE PRIMARY FACTS. AS WE HAVE NOTED EARLIER, MATERIAL FACTS ARE AKIN TO PRIMARY FACTS ONLY. THEREFORE, W E SEE FROM THE RECORDED REASONS THAT THE CONDITIONS PRECEDENT AS B ENCHMARKED BY FIRST PROVISO TO S.147 IS FOUND TO BE NOT COMPLIED WITH. CONSEQUENTLY, THE ACTION TAKEN UNDER S.147/148 IN THE CASE OF THE ASSESSEE HEREIN, WHERE THE ASSESSMENT WAS ORIGINALLY COMPLETED UNDE R S.143(3) OF THE ACT AND NOTICE UNDER S.148 WAS ISSUED ONLY AFTER T HE END OF FOUR YEARS FROM THE RELEVANT ASSESSMENT YEAR IS CLEARLY INVAL ID AND NOT SUSTAINABLE IN LAW. AS A COROLLARY, WE HOLD THAT THE ASSESSING OFFICER HAS WRONGLY USURPED THE JURISDICTION UNDER S.147 WI THOUT COMPLIANCE OF STRICT CONDITIONS LAID DOWN IN S.147. COUPLED WI TH THIS, WE ALSO OBSERVE THAT NO NEW FACTS WERE DISCOVERED AFTER THE COMPLETION OF THE ORIGINAL SCRUTINY ASSESSMENT WHILE ISSUING NOTICE F OR REOPENING THE ASSESSMENT. THE ASSESSING OFFICER HAD TAKEN NOTE O F THE CAPITALIZATION ITA NO.45/HYD/2015 M/S. GLAND PHARMA LIMITED . HYDERABAD 10 OF ASSETS ETC. IN THE ORIGINAL ASSESSMENT. THE NOT ICE UNDER S.148 HAS APPARENTLY BEEN ISSUED ON REVIEW OF EXISTING FACTS ON RECORD. IN THESE CIRCUMSTANCES, THE SUBSEQUENT ORDER UNDER S.147 IS NOTHING BUT SEEKING REVIEW OF COMPLETED ASSESSMENT ON SOME CHAN GE OF OPINION ON THE INFERENCE EARLIER DRAWN WHICH IS TO PERMISSI BLE IN LAW AS PER THE RATIO LAID DOWN IN KELVINATOR INDIA LTD. (SUPRA) AN D OTHER LONG LINE OF JUDICIAL PRECEDENTS. HENCE, IN OUR CONSIDERED OPINI ON, THE ASSESSING OFFICER HAS MISDIRECTED HIMSELF IN LAW IN REOPENING THE COMPLETED ASSESSMENT WITHOUT ANY LEGAL FOUNDATION. IN THIS V IEW OF THE MATTER, IMPUGNED ASSESSMENT MADE UNDER S.143(3) READ WITH S .147 OF THE ACT IS LIABLE TO BE SET ASIDE CANCELLED. WE DO SO ACCOR DINGLY. 13. AS WE HAVE HELD THAT NOTICE UNDER S.147/148 I S NOT SUSTAINABLE IN LAW, ALL OTHER GROUNDS RAISED BY THE ASSESSEE IN THE APPEAL ARE RENDERED INFRUCTUOUS AND ACADEMIC AND TH EREFORE NOT ADJUDICATED UPON. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLO WED. PRONOUNCED ACCORDINGLY IN THE OPEN COURT ON 06.07 .2016 SD/- SD/- (D.MANMOHAN) (PRADIP KUMAR KEDIA) VICE PRESIDENT ACCOUNTANT MEMBER DT/- 06 TH JULY, 2016. ITA NO.45/HYD/2015 M/S. GLAND PHARMA LIMITED . HYDERABAD 11 COPY FORWARDED TO: 1. M/S. GLAND PHARMA LIMITED, C/O. SHRI K.VASANTKUMAR, A.V.RAGHU RAM, ADVOCATE,. 2610 BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD 500 001. 2. DY. COMMISSIONER OF INCOME - TAX CIRCLE 2 (3), HYDERABAD 3. 4. COMMISSIONER OF INCOME-TAX(APPEALS) III, HYDERABAD COMMISSIONER OF INCOME-TAX III, HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE ITAT, HYDERABAD B.V.S.