DCIT, New Delhi V. M/s Vatika Land Base Ltd., New Delhi

ITA 4835/DEL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69681 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 29-10-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 11-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Assessee Lawyers: C S AGARWAL
• Keywords: Depreciation; Tangible material; Difference of opinion; Reason to believe; Change of opinion; Revenue expenditure; Reassessment proceedings; Capital expenditure
• Section: 143(3); 147; 148; 63

Judgement Text

ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `H NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.4835/DEL/2012 ASSESSMENT YEAR : 2004-05 DY.COMMISSIONER OF INCOME TAX, VS VATIKA L AND BASE LTD., CENTRAL CIRCLE-20,NEW DELHI. (NOW VATIKA LTD.), 621-A, DEVIKA TOW ER, 6, NEHRU PLACE, NEW DELHI-110019 (PAN: AABCV5647G) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SAMEER SHARMA, SR. DR RESPONDENT BY : SHRI C.S. AGARWAL, SR. ADVOCA TE O R D E R PER CHANDRAMOHAN GARG, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAI NST THE ORDER OF THE COMMISSIONER OF INCOME TAX(A)-XXXI, NEW DELHI DATED 02.07.2012 IN APPEAL NO. 1228/11-12 FOR AY 2004-05. 2. GROUND NO. 1 AND 5 OF THE REVENUE ARE GENERAL IN NATURE WHICH NEED NO ADJUDICATION. REMAINING GROUNDS OF THE REVENUE READ AS UNDER:- 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN DELETING IN HOLDING THAT TH E REASSESSMENT PROCEEDING CANNOT SURVIVE THE TEST OF JUDICIAL SCRUTINY AND HENCE NOT SUSTAINABLE ON THE GROUND THAT THE REASSESSMENT PROCEEDINGS ARE BASED ON CHAN GE OF OPINION. ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,35,33,141/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF COMMITMENT CHARGES HOLDING THE SAME TO B E CAPITAL EXPENDITURE AS AGAINST REVENUE EXPENDITURE CLAIMED BY THE ASSESSEE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,01,92,476/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF RENT RECEIVED AND THE SAME UNDER THE HEA D INCOME FROM HOUSE PROPERTY UNDER SECTION 22 OF INCOME HOUSE PROPERTY. GROUND NO.2 3. APROPOS GROUND NO. 2, LD. DR SUBMITTED THAT THE COMMISSIONER OF INCOME TAX(A) WAS NOT JUSTIFIED AND GROSSLY ERRED I N HOLDING THAT THE REASSESSMENT PROCEEDINGS CANNOT SURVIVE ON THE TEST OF JUDICIAL SCRUTINY AND HENCE, THE SAME WERE NOT SUSTAINABLE ON THE GROUND THAT THE INITIATION OF REASSESSMENT PROCEEDINGS WERE BASED ON CHANGE OF OP INION. THE DR POINTED OUT THAT THE NOTICE U/S 148 OF THE INCOME T AX ACT, 1961 (FOR SHORT THE ACT) HAS BEEN ISSUED IN ACCORDANCE WITH CLAUSE (B) OF SECTION 149(1) R/W PROVISO TO SECTION 151(1) OF THE ACT. THE DR ALSO CONTENDED THAT AFTER RECORDING REASONS, THE ASSESSING OFFICER OBTAINED S ANCTION OF COMMISSIONER OF INCOME TAX, CENTRAL-I, NEW DELHI IN ACCORDANCE W ITH PROVISO TO SECTION 151(1) OF THE ACT PRIOR TO ISSUANCE OF NOTICE U/S 1 48 OF THE ACT ON 29.03.2011. THE DR ALLEGED THAT THE COMMISSIONER O F INCOME TAX(A) ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 3 WRONGLY HELD THAT INITIATION OF REASSESSMENT PROCEE DINGS WAS WITHOUT BASIS AND THE ASSESSING OFFICER PROCEEDED TO INITIATE PRO CEEDINGS ON COMPLETELY MISCONCEIVED AND ARBITRARY ASSUMPTIONS AND TO REVIE W THE ASSESSMENT ALREADY MADE ON THE COMPLETELY WRONG ASSUMPTION THA T THE ASSESSEE HAD FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FAC TS DURING THE ORIGINAL ASSESSMENT PROCEEDINGS. 4. REPLYING TO THE ABOVE, LD. COUNSEL OF THE ASSESS EE POINTED OUT THAT THE INITIATION OF REASSESSMENT PROCEEDINGS WAS WITHOUT ANY BASIS AND NOTICE U/S 148 OF THE ACT DATED 29.03.2011 HAS BEEN RECEIVED O N 04.04.2011 BEYOND A PERIOD OF SIX YEARS AND PROCEEDINGS HAVE BEEN INITI ATED BEYOND THE PRESCRIBED STATUTORY PERIOD OF SIX YEARS. THE COUN SEL ALSO SUBMITTED THAT THE NOTICE HAS BEEN ISSUED IN A MECHANICAL MANNER WITHO UT APPLICATION OF MIND ONLY FOR COLLATERAL PURPOSES. THE COUNSEL OF THE A SSESSEE RELIED ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT OF DELHI IN THE C ASE OF ORIENT CRAFTS LTD. IN ITA NO. 555/2012 DATED 12.12. 2012 AND SUBMITTED THAT NON-MENTIONING OF DETAILS IN THE REASONS RECOR DED IS A NOTICE OF MECHANICAL MANNER WHICH CANNOT BE SAID TO BE A STAT UTORY NOTICE FOR VALID INITIATION OF PROCEEDINGS U/S 147 AND 148 OF THE AC T. THE COUNSEL POINTED OUT PAGE NO. 81 AND 82 OF PAPER BOOK AND SUBMITTED THAT THE ISSUE OF RENT WAS DEALT IN DETAIL BY THE ASSESSING OFFICER BY CON SIDERING REPLY AND ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 4 SUBMISSION OF THE ASSESSEE. THE COUNSEL VEHEMENTLY CONTENDED THAT THE REASONS RECORDED ARE MERELY A REVIEW AND A CHANGE O F OPINION ON THE SAME MATERIAL WHICH WAS AVAILABLE WITH THE ASSESSING OFF ICER AT THE TIME OF ORIGINAL ASSESSMENT. THE COUNSEL ALSO CONTENDED TH AT THE COMMISSIONER OF INCOME TAX(A) RIGHTLY HELD THE PROCEEDINGS OF REASS ESSMENT AS CHANGE OF OPINION BECAUSE THE ASSESSING OFFICER HAD NO NEW TA NGIBLE MATERIAL WHICH HAS COME TO THE NOTICE AND KNOWLEDGE OF THE ASSESSI NG OFFICER AFTER COMPLETION OF ORIGINAL ASSESSMENT. THE COUNSEL SUP PORTED THE IMPUGNED ORDER AND SUBMITTED THAT THE APPEAL OF THE REVENUE IS WITHOUT ANY BASIS AND SUBSTANCE EITHER ON LEGAL GROUNDS OR ON MERITS. 5. ON CAREFUL CONSIDERATION OF ABOVE RIVAL ARGUMENT S AND SUBMISSIONS OF BOTH THE PARTIES, AT THE OUTSET, WE FIND IT APPROPR IATE TO REPRODUCE THE REASONS RECORDED BY THE ASSESSING OFFICER FOR INITIATION OF REASSESSMENT PROCEEDINGS UNDER SECTION 147 AND 148 OF THE ACT, WHICH READ AS UNDER:- REASONS RECORDED IT IS SEEN FROM RECORDS THAT THE ASSESSEE COMPANY HAS CLAIMED COMMITMENT CHARGES PAID AT RS.2,35,33,141/- WHICH ARE NOT ADMISSIBLE. MOREOVE R, NO TAX HAS BEEN DEDUCTED FROM SUCH PAYMENTS. FURTHER THE ASSESSEE HAS SET OFF RENT EARNED AT RS.1,45,60,668/- FROM THE RENT PAID AT RS.2,07,74,3 91/- WHEREAS INCOME FROM HOUSE PROPERTY SHOULD HAVE BEEN SET OFF AGAINST ANY LOSS/RENT PAID. IN COMPUTING INCOME FROM HOUSE PROPERTY, THE ASSESSEE WAS REQUIRED TO ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 5 COMPUTE DEDUCTION UNDER SECTION 24 OF INCOME TAX AC T 1961 AT 30% OF ALV/RENT RECEIVED. THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT BY REASON OF FAILURE ON THE PART OF THE ASSESSEE AND TO DISCLOSE FULLY AND TRULY ALL MATERI AL FACTS NECESSARY FOR THE ASSESSMENT. THEREFORE, I HAVE RE ASON TO BELIEVE THAT INCOME AS MENTIONED ABOVE HAS ESCAP ED ASSESSMENT. ACCORDINGLY, NOTICE ISSUED UNDER SECTI ON 148 OF INCOME TAX ACT, 1961. 6. FROM A MERE PERUSAL OF THE REASONS RECORDED AS R EPRODUCED HEREINABOVE, WE OBSERVE THAT THE ASSESSING OFFICER HAS AGITATED THE POINT OF COMMITMENT CHARGES AND RENT AND CONCLUDED THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT BY REASON OF FAILURE ON THE PART OF THE ASSESSEE AND TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT. 7. LD. DR SUPPORTED THE ACTION OF THE ASSESSING OFF ICER AND SUBMITTED THAT THERE WAS A FAILURE ON THE PART OF ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR COMPLETION OF ASSESSME NT AS THE FULL FACTS OF COMMITMENT CHARGES, RENT RECEIVED AND RENT PAID WER E NOT DISCLOSED AND THIS AMOUNTS TO FAILURE ON THE PART OF THE ASSESSEE TO D ISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR COMPLETION OF ASSESSME NT. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT DURING THE ORIGINAL ASS ESSMENT PROCEEDINGS U/S 143(3) OF THE ACT, THE ASSESSEE HAD FURNISHED ALL T HE DETAILS RELATING TO NET RENT I.E. THE DIFFERENCE OF RENT RECEIVED AND RENT PAID AND ALSO FURNISHED THE ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 6 DETAILS AND BUSINESS OBJECTIVE OF THE PAYMENT OF CO MMITMENT CHARGES PAID, THEREFORE, IT CANNOT BE SAID THAT THESE FACTS WERE REMOTELY HIDDEN BY THE ASSESSEE. THE COUNSEL FURTHER SUBMITTED THAT IN TH IS SITUATION WHEN THE ASSESSEE HAS FURNISHED ALL RELEVANT DETAILS PERTAIN ING TO THE BASIS OF REASON TO BELIEVE, THE SAME CANNOT LEAD TO A REASONABLE BELIE F OF NON-DISCLOSURE OR FAILURE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FA CTS BY THE ASSESSEE. 8. FOR PROPER ADJUDICATION OF THIS CONTROVERSY, WE FIND IT APPROPRIATE TO REPRODUCE THE RELEVANT OPERATIVE PART OF THE IMPUGN ED ORDER WHICH READS AS UNDER:- 6.5 THE BASIC AND MOST IMPORTANT OBJECTION OF TH E APPELLANT IS THAT NO COMPLETED ASSESSMENT CAN BE REOPENED ON THE MERE CHANGE OF OPINION. IN SUPPORT OF THIS CONTENTION APPELLANT HAS FILED BEFORE ME DETAI LS FILED BY IT BEFORE THE ASSESSING OFFICER ON THE ISSUES FO R WHICH RE-OPENING OF THE ASSESSMENT HAS BEEN MADE. IT IS S TATED BY THE APPELLANT THAT DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS ON 26TH SEPTEMBER, 2006, VARIOUS DETAILS WERE DIRECTED TO BE FILED BY THE AP PELLANT WHICH WERE DULY FILED BY THE APPELLANT. THE ASSESSI NG OFFICER THEREAFTER DIRECTED THE APPELLANT TO FILE F URTHER EXPLANATION ON CERTAIN QUERIES LIKE DEPRECIATION, R ENTAL RECEIPTS, COMMITMENT CHARGES, AND COPIES OF CERTAIN LEASE DEEDS. IN REPLY TO SPECIFIC QUERY DETAILS OF TAX DEDUCTED AT SOURCE WERE ALSO FILED. THE ASSESSMENT WAS COMPLETED AFTER APPRECIATION OF ALL THE FACTS OF TH E CASE AND THE DETAILS FILED BEFORE THE ASSESSING OFFICER. EVEN TAX AT SOURCE WAS DULY DEDUCTED BY THE APPELLANT ON PAY MENT OF COMMITMENT CHARGES IN EVIDENCE OF WHICH COPIES A T FORM NUMBER 16 ISSUED BY THE APPELLANT HAVE BEEN FI LED. THE APPELLANT HAS FILED DETAILED SUBMISSIONS ON THE PAPERS AND EXPLANATIONS WERE FILED BEFORE THE ASSES SING ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 7 OFFICER IN ORIGINAL ASSESSMENT PROCEEDINGS AND ARE REPRODUCED IN PARAS 5.1.9 TO 5.1.29 HERE IN ABOVE. 6.5.1 SO FAR THE OBJECTIONS TO THE RE-OPENING BY TH E APPELLANT IS CONCERNED, IT IS DESIRABLE TO DISPOSE THEM OFF WITHIN A REASONABLE TIME. THE ASSESSING OFFICER THO UGH HAD NOT DISPOSE THEM OFF BY AN INTERIM ORDER NEVERT HELESS HE HAS DEALT WITH THE OBJECTIONS IN THIRD PARA OF T HE ASSESSMENT ORDER. FROM THE AFORESAID FACTS IT IS EV IDENT THAT ALL THE DETAILS REGARDING PAYMENT OF COMMITMEN T CHARGES, DETAILS OF RENT RECEIVED/ PAID WERE AVAILA BLE WITH THE ASSESSING OFFICER AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS AND ASSESSING OFFICER HAD MA DE CONSCIOUS DECISION OF ACCEPTING THE DETAILS FILED B Y THE APPELLANT. IN MY OPINION THE ATTEMPT NOW MADE BY TH E ASSESSING OFFICER IS NOTHING BUT A CHANGE OF OPINIO N. 6.5.2 IN A RECENT CASE OF THE APPELLANT DATED 10.04 .2012 FOR THE ASSESSMENT YEAR 2005-2006, HON'BLE HIGH COU RT OF DELHI IN WP (C) 8292/2010 HAS HELD AS UNDER:- BEFORE CONCLUDING, WE NOTE THAT THE ASSESSING OFFI CER IN THE ORDER DATED 02. 12 2010 HAS NOT SPECIFICALLY DE ALT WITH THE ISSUES AND CONTENTIONS RAISED BY THE PETITIONER. TH EY REMAIN UNANSWERED. THE ASSESSING OFFICER HAS RAISED A NUMB ER OF QUESTIONS. THE QUESTIONS DO NOT FORM THE PART OF TH E REASONS RECORDED FOR THE RE-OPENING. IN A CASE WHERE AN ISS UE WAS EXAMINED AND CONSIDERED IN THE ORIGINAL ASSESSMENT PROCEEDINGS, MERE QUESTION(S) IS NOT SUFFICIENT. TH ERE IS NO MATERIAL EVIDENCE TO SHOW THAT THE STATEMENT OR THE EXPLANATION GIVEN BY THE PETITIONER WAS FALSE. THIS IS NOT ALL EGED OR STATED IN THE REASONS TO BELIEVE. MERE DOUBT OR SUSPICION WITHOUT ANY TANGIBLE MATERIAL CANNOT JUSTIFY RE-OPENING. THE AS SESSING OFFICER COULD HAVE JUSTIFIED REOPENING IF HE HAD CO NDUCTED VERIFICATION AND INQUIRIES AND REFERRED TO MATERIAL /EVIDENCE TO PRIMA FACIE SHOW THAT THE EXPLANATION OF THE PETITI ONER WAS FALSE AND WRONG. NO SUCH EXERCISE AND VERIFICATION WAS MA DE AND THE REASONS TO BELIEVE ARE SILENT. ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 8 IN VIEW OF THE AFORESAID DISCUSSION, A WRIT OF CERT IORARI IS ISSUED QUASHING THE NOTICE DATED 14.09.2009. IN THE FACTS OF THE CASE THERE WILL BE NO ORDER AS TO COSTS. IN VIE W OF THE FACT THAT WE HAVE QUASHED THE NOTICE, THE REASSESSMENT O RDER, IF ANY, PASSED BY THE ASSESSING OFFICER SHALL BE TREAT ED AS VOID. 6.5.3 SIMILARLY, IN ASSESSEE'S OWN CASE IN RESPECT OF ASSESSMENT YEAR 2002-2003, IN W. P. (C)13878/2009, THE HON'BLE HIGH COURT OF DELHI IN THEIR ORDER DATED 13.02.2012 HAVE HELD WHILE QUASHING THE PROCEEDINGS U/S 147/ 148 OF THE INCOME TAX ACT. 1961 THAT 'THE RESPONDENT HAD COMPLETED THE ASSESSMENT U/S 143 (3) OF THE INCOME TAX ACT, 1961 AFTER SCRUTINY. NOW IT CAN NOT BE ALLEGED THAT THE PETITIONER HAD NOT FURNISHED FU LL AND TRUE PARTICULARS RELATING TO THE CLAIM OF DEPRECIAT ION AT THE TIME OF ORIGINAL ASSESSMENT ALL THE PRIMARY FAC TS RELATING TO THE CLAIM HAD BEEN DISCLOSED BY THE PET ITIONER AND IT WAS FOR THE RESPONDENT TO DRAW THE APPROPRIA TE INFERENCES REGARDING THE ALLOWABILITY OF THE CLAIM OF DEPRECIATION. IT IS NOT PART OF THE DUTY OF THE PET ITIONER TO INFORM THE ASSESSING OFFICER AS TO WHAT INFERENCES SHOULD BE DRAWN FROM THE PRIMARY FACTS DISCLOSED. IT IS NO T ALLEGED OR STATED IN THE REASONS THAT THE AVERMENTS MADE IN THE LETTERS WRITTEN BY THE PETITIONER-ASSESSEE W ERE FALSE OR INCORRECT. 6.5.4 THE AO IN HIS ASSESSMENT ORDER HAS QUOTED AN OBSERVATION OF HON'BLE APEX COURT IN THE CASE OF IN DO ADEN SALT MANUFACTURING AND TRADING CO. (P) LTD., V S C.I.T. 159 ITR 634 (SC) AS UNDER:- THE ASSESSEE'S CONTENTION IS THAT THE INCOME TAX OFFICER COULD NOT HAVE FOUND OUT THE POSITION BY FU RTHER PROBING. THAT, HOWEVER, DOES NOT EXONERATE THE ASSESSEE TO M AKE FULL DISCLOSURE TRULY. EXPLANATION 2 TO SECTION 147 OF T HE ACT MAKES THE POSITION ABUNDANTLY CLEAR. THE PRINCIPLES HAVE ALSO BEEN WELL-SETTLED AND REITERATED IN NUMEROUS AND DECISIO NS OF THIS COUNT: SEE KANTAMANI VENKATA NARAYANA & SONS V. FIR ST ITO [1967} 63 ITR 63 (SC) AND ITO V. LAKHMANI MEWAL DAS [1976} 103 ITR 437. (SC). HIDAYATULLAH, J. AS THE LEARNED CHIEF JUSTICE ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 9 THEN WAS OBSERVED IN CALCUTTA DISCOUNT CO.'S CASE ( 1961) 41 ITR 191 (SC) THAT MERE PRODUCTION OF EVIDENCE BEFOR E THE INCOME TAX OFFICER WAS NOT ENOUGH, THAT THERE MAY B E OMISSION OR FAILURE TO MAKE A TRUE AND FULL DISCLOS URE, IF SOME MATERIAL FOR THE ASSESSMENT LAY EMBEDDED IN THE EVI DENCE WHICH THE REVENUE COULD HAVE UNCOVERED BUT DID NOT , THEN IT IS THE DUTY OF THE ASSESSEE TO BRING IT TO THE NOTICE OF THE ASSESSING AUTHORITY. THE ASSESSEE KNOWS ALL THE MAT ERIAL AND RELEVANT FACTS - THE ASSESSING AUTHORITY MIGHT NOT. IN RESPECT OF THE 'FAILURE' TO DISCLOSE, THE OMISSION TO DISCLOSE MAY BE DELIBERATE OR INADVERTENT. THAT WAS IMMATERIAL. BUT IF THERE IS OMISSION TO DISCLOSE MATERIAL FACTS, THEN SUBJECT T O THE OTHER CONDITIONS JURISDICTION TO REOPEN IS ATTRACTED. IT IS SUFFICIENT TO REFER TO THE DECISION OF THIS COURT IN CALCUTTA DIS COUNT CO.'S CASE [1961] 41 ITR 191 (SC) WHERE IT HAD BEEN HELD THAT IF THERE ARE SOME PRIMARY FACTS FROM WHICH A REASONABL E BELIEF COULD BE FORMED THAT THERE WAS SOME NON-DISCLOSURE OR FAILURE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS, THE INCOME TAX OFFICER HAS JURISDICTION TO REOPEN THE ASSESSMENT. THIS POSITION WAS AGAIN REITERATED BY THIS COURT IN MALEGAON ELEC TRICITY CO P. LTD. V. CIT [1970] 781TR 466 (SC).' AS STATED EARLIER IN PARA 5.1.24, THE APPELLANT DURING THE ORIGINAL ASSESSMENT' PROCEEDINGS U/S 143 (3) HAD FURNISHED THE DETAILS RELATING TO 'NET RENT I.E . THE DIFFERENCE OF RENT RECEIVED AND RENT PAID' AND ALSO THE DETAILS AND PURPOSE OF 'COMMITMENT CHARGES PAID' TH US IT CANNOT BE SAID THAT IT WAS REMOTELY HIDDEN WHICH COULD NOT HAVE BEEN DISCOVERED AND WHICH CAN LEAD TO A REASONABLE BELIEF OF NON DISCLOSURE OR FAILURE TO D ISCLOSE FULLY AND TRULY ALL MATERIAL FACTS. THE RATIO OF C ASE LAWS CITED BY THE ASSESSING OFFICER DO NOT APPLY TO THE INSTANT CASE. THEREFORE, I DO NOT AGREE WITH THE FINDINGS OF THE ASSESSING OFFICER ON THE ISSUE OF ABSENCE OF FULL A ND TRUE DISCLOSURE BY THE APPELLANT. 6.5.5 IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, IN MY OPINION, IT IS A CASE WHERE ASSUMPTION OF JURISDICTION U/S 147/148 OF THE I.T.ACT, 1961 IS NO T VALID AS IT IS BASED ON CHANGE OF OPINION. THE ISSUES RA ISED ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 10 MAY BE DEBATABLE BUT ONE DECIDED ON THE BASIS OF INFORMATION PROVIDED BY THE APPELLANT AND WHICH IS NOT HELD TO BE WRONG, SAME CANNOT BE REVIEWED BY ASSUMI NG JURISDICTION U/S 147/148 OF THE I.T.ACT, 1961. HAV ING SECOND THOUGHTS ON THE SAME MATERIAL AND OMISSION T O DRAW THE CORRECT LEGAL PRESUMPTION DURING ORIGINAL ASSESSMENT DO NOT WARRANT THE INITIATION OF A PROCE EDINGS U/S 147 ITO VS NAWAB MIR BARKAT ALI KHAN (1974) 9 7 ITR 239 (SC). AS SUCH THE REASSESSMENT PROCEEDINGS CANNOT SURVIVE THE TEST OF JUDICIAL SCRUTINY AND HE NCE NOT SUSTAINABLE. 9. FROM THE ABOVE OBSERVATIONS AND FINDINGS OF THE COMMISSIONER OF INCOME TAX(A), IT IS APPARENT THAT THE ASSESSEE MAD E DETAILED SUBMISSIONS BEFORE THE ASSESSING OFFICER REPLYING TO THE QUERIE S OF THE ASSESSING OFFICER. IN SUPPORT OF THE SUBMISSIONS, THE ASSESSEE ENCLOSE D COPIES OF THE DETAIL OF COMMITMENT CHARGES PAID BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION WHICH ARE PLACED AT PAGE NO. 87-90 OF THE PAPER BOOK. COPIES OF THE RENTAL RECEIPTS AND RENTAL PAYMENTS WERE ALS O FILED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS WHICH ARE PLACED AT PAGE 91-96 OF THE PAPER BOOK AND WRITTEN SUBMISSIONS FILED BY THE ASS ESSEE DATED NIL WERE ALSO PLACED BEFORE THE ASSESSING OFFICER WHICH ARE AVAIL ABLE AT PAGE 81-82 OF THE PAPER BOOK. THUS, IT CANNOT BE SAID THAT THE ASSES SEE FAILED TO SUBMIT OR DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR ASSESSMENT. WE ARE NOT IN AGREEMENT WITH THE FINDINGS OF THE ASSESSING OFFICER THAT THERE WAS A FAILURE ON THE PART OF ASSESSEE TO DISCLOSE FULLY A ND TRULY ALL MATERIAL FACTS ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 11 AND THE ASSESSING OFFICER HAD REASON TO BELIEVE THA T THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT DUE TO THIS REASON. IN VIEW OF DISCUSSIONS MADE HEREINABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE COMMISSIONER OF INCOME TAX(A) RIGHTLY HELD THAT THE ASSUMPTION O F JURISDICTION U/S 147 AND 148 OF THE ACT WAS BASED ON CHANGE OF OPINION A ND THUS, IT WAS NOT VALID. FROM THE REASONS RECORDED BY THE ASSESSING OFFICER, IT IS CLEAR THAT THE ISSUES RAISED AND AGITATED FOR INITIATION OF RE ASSESSMENT PROCEEDINGS MAY BE DEBATABLE BUT ONCE THESE ISSUES ARE DECIDED ON T HE BASIS OF DETAILS AND INFORMATION PROVIDED BY THE ASSESSEE AND THE SAME W AS FOUND SATISFACTORY AND NOTHING WRONG OR INCORRECT WAS FOUND, THEN THE SAME ISSUES CANNOT BE REVIEWED BY ASSUMING JURISDICTION U/S 147 AND 148 O F THE ACT. WE ALSO HOLD THAT HAVING SECOND THOUGHTS ON THE SAME MATERIAL AN D OMISSION ON THE PART OF ASSESSING OFFICER TO DRAW THE CORRECT LEGAL PRES UMPTION DURING THE ASSESSMENT PROCEEDINGS CANNOT BE A BASIS OF INITIAT ION OF REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT. ACCORDINGLY, THE C OMMISSIONER OF INCOME TAX(A) RIGHTLY HELD THAT REASSESSMENT PROCEEDINGS D O NOT SURVIVE THE TEST OF JUDICIAL SCRUTINY AND THE SAME ARE NOT SUSTAINABLE. ACCORDINGLY, WE HOLD THAT THE COMMISSIONER OF INCOME TAX(A) WAS RIGHT IN HOLD ING THE REASSESSMENT PROCEEDINGS AS NOT VALID AS THESE WERE BASED ON CHA NGE OF OPINION ON THE SAME MATERIAL WHICH WAS NOT SUBMITTED BEFORE THE AS SESSING OFFICER AT THE ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 12 TIME OF ORIGINAL PROCEEDINGS. IN THIS SITUATION, W E ARE UNABLE TO SEE ANY VALID REASON TO INTERFERE WITH THE FINDINGS OF THE COMMIS SIONER OF INCOME TAX(A) IN THIS REGARD AND WE UPHOLD THE SAME. ACCORDINGLY , WE HOLD THAT THE NOTICE U/S 148 OF THE ACT WAS BASED ON CHANGE OF OPINION A ND THUS IT WAS INVALID AND THE COMMISSIONER OF INCOME TAX(A) RIGHTLY QUASH ED THE SAME. RESULTANTLY, THE REASSESSMENT ORDER PASSED IN PURSU ANCE OF PROCEEDINGS U/S 147/148 OF THE ACT IS ALSO QUASHED. THEREFORE, GRO UND NO. 2 OF THE REVENUE IS DISMISSED. GROUND NO. 3 & 4 OF THE REVENUE 10. SINCE WE HAVE QUASHED NOTICE U/S 147/148 OF THE ACT AND REASSESSMENT ORDER PASSED IN PURSUANCE THERETO, THE REFORE, OTHER GROUNDS OF THE REVENUE DO NOT SURVIVE FOR ADJUDICATION ON MERI TS AND THEY ARE ALSO DEEMED TO BE DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/12/2013. SD/- SD/- (G.D. AGRAWAL) (CHANDRAMOHAN GARG) VICE PRESIDENT JUDICIAL MEMBER DT. 20TH DECEMBER 2013 GS ITA NO.4835/DEL/2012 ASSTT.YEAR: 2004-05 13 COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR