Appeal details
Counselvise Citation
[2021] 109 COUNSELVISE.COM (IT) 1887 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 2 month(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
08-03-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Next Hearing Date
18-02-2021
Assessment Year
2011-2012
Appeal Filed On
07-01-2019
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI. B.R BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.51/BANG/2019 ASSESSMENT YEAR : 2013-14 M/S J.P DISTILLERIES PVT. LTD., NO.219/11, J.P CORP, BELLARY ROAD, SADASHIVANAGAR, BENGA,LURU-560 080. PAN AAACJ 3609 H VS. THE INCOME-TAX OFFICER, WARD-4(1)(1), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI C RAMESH, C.A REVENUE BY : SHRI KANNAN NARAYANAN, JCIT (DR) DATE OF HEARING : 18-02-2021 DATE OF PRONOUNCEMENT : 08-03-2021 ORDER PER BEENA PILLAI, JUDICIAL MEMBER PRESENT APPEAL HAS BEEN FILED BY ASSESSEE AGA INST ORDER DATED 22/11/2018 PASSED BY THE LD.CIT (A)-4, BANGALORE FO R ASSESSMENT YEAR 2013-14 ON FOLLOWING GROUNDS OF APP EAL: PAGE 2 OF 11 ITA NO.51/BANG/2019 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-4, BANGALORE IS OPPOSED TO THE FACTS OF THE CASE AND L AW APPLICABLE TO IT. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING ADDITION TO THE EXTENT OF RS.37,00,000I- BEING A DI SALLOWANCE OF EXPENSES CLAIMED UNDER BREAKAGES & DAMAGES FOR THE ALLEGED R EASON THAT, IT IS ONLY AN ESTIMATE, IN THE NATURE OF PROVISION AND HENCE N OT ALLOWABLE. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT, THE BREAKAGES & DAMAGES WHICH ARE LOSS TO THE APPELLANT HAD ALREADY CRYSTALLIZED IN THE PREVIOUS YEAR RELEVANT TO A.Y.2011-12 AND AN EXPENDITURE ON THE BASIS OF INFO RMATION AVAILABLE WAS CLAIMED ONLY FOR THE REASON THAT, THE ACTUAL QUANTU M OF EXPENDITURE WAS NOT MADE KNOWN BY KSBCL TO WHOM THE APPELLANT SELL IML AS PER EXCISE ACT OF GOVERNMENT OF KARNATAKA AS ON THE DATE OF FI LING THE RETURN OF INCOME. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT, THE BREAKAGES AND DAMAG ES CLAIMED WAS NOT A PROVISION BUT EXPENDITURE CRYSTALLIZED DURING THE R ELEVANT PREVIOUS YEAR AND HENCE ALLOWABLE UNDER LAW FOR THE A.Y.2011-12 U /S 28 OF THE ACT. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF EXPENDITURE OF RS.66,31 408/- B EING ARRACK RENTALS PAID ALLEGEDLY FOR THE REASON THAT, IT IS A PRIOR P ERIOD EXPENDITURE. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT, THE EXPENDITURE THOUGH RELATED TO EXCISE YEAR 2001-02 FRUCTIFIED ONLY DURING THE PREVIOUS YEAR RE LEVANT TO A.Y.2011-12 AND HENCE ALLOWABLE AS EXPENDITURE FOR THE SAID YEA R. 7. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN IGNORING THE FACT THAT, THE PROVISIONS OF SECTION 147 OF THE ACT, HAS BEEN INITIATED AFTER A PERIOD OF FOUR YEARS FROM THE END OF THE AS SESSMENT YEAR IN A CASE WHERE AN ORDER U/S.143(3) OF THE ACT HAD ALREADY PA SSED AND IN THE ABSENCE OF ANY FRESH MATERIAL THE SAID PROVISIONS C OULD NOT HAVE BEEN INVOKED. 8. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN IGNORING THE FACT THAT. THE INVOKING PROVISIONS OF SECTION 1 47 OF THE ACT WAS BAD IN LAW AND THEREFORE THE CONSEQUENTIAL ORDER U/S.143(3 ) R.W.S 147 OF THE ACT SHOULD HAVE BEEN ANNULLED. 9. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN IGNORING THE POSITION OF LAW LAID DOWN IN THE FOLLOWING DECISION S THAT, ON A MERE CHANGE IN OPINION THE PROVISIONS OF SECTION 147 OF THE ACT COULD NOT HAVE BEEN INVOKED. I) RALLIES INDIA LTD VS. ACIT & ANOTHER (2010) 323 ITR 54 (BOM) II) CIT V. (I) KELVINATOR OF INDIA LTD (II) EICHER LTD (2010) 320 ITR 561 (SC) III) ASIAN PAINTS LTD V. DEPUTY COMMISSIONER OF INC OME TAX & ANOTHER (2009) 223 CTR 141 (BOM) IV) CIT V. YOUNUS KUNJU (1997) 228 ITR 147 (KERALA) PAGE 3 OF 11 ITA NO.51/BANG/2019 10. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN IGNORING THE POSITION OF LAW LAID DOWN BY THE HON'BLE SUPREM E COURT IN THE CASE OF ACIT V. DHIRENDRA HANSRAJ SINGH, S.L.P (C) NO.32237 OF 2018 WHEREIN IT IS HELD THAT: WHEN THERE IS NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE ALL MATERIAL FACTS AT THE TIME OF ORIGINAL ASSESSME NT, PROVISIONS OF SECTION 147 OF THE ACT CANNOT BE INVOKED AFTER A PERIOD OF FOUR YEARS FROM THE END OF THE ASSESSMENT YEAR. 11. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN FOLLOWING THE RATIO LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF KALYANJI MAVJI & CO., V. CIT(S) 102 HR 287 (SC) IGNORING THE FACT THAT, THE SAID DECISION IS FOR THE A.Y.1956-57 AND ON THE POSITION OF LAW AS I T STOOD IN 1922 ACT AND THERE HAS BEEN VARIOUS AMENDMENTS TO THE SAID PROVI SIONS CONSEQUENT TO THE INTRODUCTION OF 1961 ACT, UNDER THE CIRCUMSTANC ES, THE SAID RATIO HAS NO APPLICABILITY AT ALL. 12. THE APPELLANT CRAVES PERMISSION TO ADD, DELETE OR ALTER ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING. PRAYER THE APPELLANT PRAYS THAT, THE HONOURABLE TRIBUNAL T O KINDLY DELETE A. THE ADDITION CONSEQUENT TO DISALLOWANCE OF BREAK AGES OF RS.37,00,000/- UNDER THE PROVISIONS OF SECTION 28 O F THE ACT. B. THE ADDITION CONSEQUENT TO DISALLOWANCE OF ARRAC K RENTALS PAID OF RS.66,31 408/- FOR THE ALLEGED REASON THAT, THE SAI D EXPENSE WAS A PRIOR PERIOD EXPENSE. C. ANNUL THE ORDER U/S.143(3) R.W.S 147 OF THE ACT FOR THE REASON THAT, THE SAID ORDER IS BAD IN LAW. BRIEF FACTS OF THE CASE ARE AS UNDER: 2. THE ASSESSEE IS IN THE BUSINESS OF MANUFACTURING OF IMF L, RECTIFIED SPIRIT, NEUTRAL SPIRIT AND OTHER BYPRODUC TS. IT FILED ITS RETURN OF INCOME FOR YEAR UNDER CONSIDERATION ON 30 /09/2011 DECLARING NIL INCOME AFTER SETTING OFF BROUGHT FO RWARD LOSSES. THE ASSESSMENT WAS CONCLUDED UNDER SECTION 143(3) OF TH E ACT, ON 28/02/2014 BY MAKING FOLLOWING DISALLOWANCES: DISALLOWANCE UNDER SECTION 14 A R.W.RULE 8D - RS.28 ,62,262/- DISALLOWANCE OF DEDUCTION CLAIMED UNDER SECTION 36 (1)(VA) OF THE ACT -RS.3,38,328/- PAGE 4 OF 11 ITA NO.51/BANG/2019 3. ASSESSEE FILED APPEAL AGAINST THE ASSESSMENT ORD ER UNDER SECTION 143(3) BEFORE LD.CIT(A) WHO ALLOWED THE APP EAL VIDE ORDER DATED 28/03/2014. FURTHER AN APPEAL WAS PREFERRED B Y REVENUE BEFORE THIS TRIBUNAL IN ITA NO.726/B/2016 WHEREIN, THIS TRIBUNAL BY ORDER DATED 14/07/2017 DISMISSED THE APPEAL OF R EVENUE. 4. IN THE MEANTIME ON 17/05/2016, NOTICE UNDER SECT ION 148 OF THE ACT WAS ISSUED TO ASSESSEE IN RESPONSE TO WH ICH, ASSESSEE FILED RETURN ON 23/06/2016 AND REQUESTED FOR REASON S RECORDED TO BE FURNISHED TO ASSESSEE. 5. THE REASONS RECORDED WERE COMMUNICATED TO ASSESS EE ON 01/07/2016 WHEREIN FOLLOWING REASONS WERE RECORDED: I) A PERUSAL OF THE ASSESSMENT RECORDS REVEAL THAT THE ASSESSEE DEBITED AN AMOUNT OF RS.43,15,888/- TOWARDS 'BREAKA GES AND DAMAGE S'(SCH.15/SELLING AND DISTRIBUTION EXPENSES). AS PE R NOTE BELOW SL.NO. 18/19 STOCK STATEMENT /SCH. 19 NOTES TO ACCOUNTS, ' THE AMOUNTS DEBITED IS A PROVISION PENDING RECEIPT DETAILS FROM KSBCL' AND THEREFORE, IS NOT AN ADMISSIBLE EXPENSE UNDER THE P ROVISIONS OF THE ACT, INASMUCH AS THE AMOUNTS DEBITED TO THE PROFIT AND L OSS ACCOUNT ON ACCOUNT OF 'BREAKAGES AND DAMAGES' IS ONLY A PROVIS ION AND IS NOT AN AERTAINED LIABILITY AS ON THE BALANCE SHEET DATE. THE ASSESSEE COMPANY, VIDE ITS SUBMISSIONS DATED 3.6.13 AT SCH. 19 UNDER THE HEAD 'SIGNIFICANT ACCOUNTING POLICIES AND NOTES TO ACCOU NTS' AT SL. NO. 19 (PG. 16) STOCK STATEMENTS) HAS IN A 'NOTE' MENTIONED THA T 'THE BREAKAGES AND SHORTAGES DEBITED BY THE COMPANY IS BY WAY OF P ROVISION PENDING RECEIPT OF DETAILS FROM KSBCL'. HENCE, AS THE LIABI LITY HAS NOT CRYSTALLIZED INTO AN EXPENSE, THE DEDUCTION IS NOT AN ALLOWABLE DEDUCTION. II) FURTHER, THE ASSESEE DEBITED RS.66,31,408/- TOW ARDS ARRACK RENTALS FOR WHICH CLEAR DETAILS ARE NOT FORTHCOMING IN THE ASSESSMENT RECORDS. IT IS SEEN THAT THE EXPENDITURE PERTAINS TO A.Y. 2001- 02 WHICH IS ARISING OUT OF A DEMAND RAISED BY THE DY. COMMISSIONER OF E XCISE, GOVT. OF KARNATAKA DURING THE F.Y.2010-11 VIDE HIS ORDER DAT ED 17.6.2010 AND PAID BY THE ASSESSEE COMPANY ON 30.8.2010. AS NO PR OVISION APPEARS TO HAVE BEEN MADE IN THE FY 2001-02 TOWARDS THIS EX PENDITURE, THE EXPENDITURE DEBITED TO THE PROFIT AND LOSS ACCOUNT FOR THE FY RELEVANT TO THE AY 2011-12 PARTAKES THE CHARACTER OF A 'PRIOR P ERIOD EXPENSE' AND HENCE NOT AN ALLOWABLE DEDUCTION. FURTHER, IT IS NO T CLEAR FROM THE ORDER PAGE 5 OF 11 ITA NO.51/BANG/2019 OF THE DY. COMMISSIONER OF EXCISE, GOVT. OF KARNATA KA, WHETHER THE DEMAND HAS BEEN RAISED ON THE INDIVIDUAL, SHRI. J.P . NARAYANASAWAMY, ARRACK CONTRACTOR OR ON THE ASSESSE E COMPANY. IT NEEDS TO BE ASCERTAINED AS TO WHO WAS AWARDED THE A RRACK VENDING RIGHTS AT NAGAMANGAIATAIUK AND IN WHOSE NAME THE LI CENSE WAS ISSUED. 6. AS PER THE REASONS RECORDED, THE LD.AO PROPOSED TO DISALLOW FOLLOWING EXPENDITURE: BREAKAGES AND DAMAGES-RS.43,15,888/- ARRACK RENTALS -RS.66,31,408/- 7. ASSESSEE FILED VARIOUS SUBMISSIONS IN RESPECT OF THE SAME WHICH WAS DISREGARDED BY THE LD.AO. THE LD.AO PASSE D ORDER UNDER SECTION 143 (3) READ WITH SECTION 147 OF THE ACT ON 26/12/2017 BY MAKING THE DISALLOWANCES. 8. AGGRIEVED BY THE ORDER OF THE LD.AO, ASSESSEE PR EFERRED APPEAL BEFORE THE LD.CIT(A). THE ASSESSEE RAISED TH E LEGAL ISSUE CHALLENGING THE VALIDITY OF REOPENING UNDER SECTION 147 OF THE ACT, AS IT WAS AFTER A PERIOD OF 4 YEARS FROM THE END OF THE ASSESSMENT YEAR IN WHICH THE ORIGINAL ASSESSMENT ORDER WAS PAS SED. IT WAS CONTESTED THAT THERE WAS NO FRESH EVIDENCE WARRANTI NG INVOKING OF THE SAID PROVISIONS, AND THEREFORE THE REOPENING IS BAD IN LAW. 9. ON MERITS ASSESSEE FILED VARIOUS SUBMISSIONS CHA LLENGING THE ADDITION. 10. HOWEVER THE LD.CIT(A) REJECTED THE LEGAL GROUN D RAISED BY ASSESSEE BY OBSERVING AS UNDER: THE CONDITION FOR RE-OPENING THE ASSESSMENT CAN BE STATED THAT THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT U/S.147. WHERE ASSESSMENT U/S.14 3(3) OR U/S.147 MADE EARLIER AND REOPENING IS DONE AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR REOPENING IS PO SSIBLE ONLY IF INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH A SSESSMENT YEAR BY PAGE 6 OF 11 ITA NO.51/BANG/2019 REASON OF THE FAILURE ON THE PART OF THE ASSESSEE T O MAKE A RETURN U/S.139 OR IN RESPONSE TO NOTICE ISSUED U/S.142(1) OR U/S.148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR HIS ASSESSMENT. THE EXPRESSION 'HAS REASON TO BELIEVE' IS WIDER THA N 'IS SATISFIED' AS REASONS MUST HAVE A LIVE LINK WITH THE FORMATION OF BELIEF. 'INFORMATION' FOR REOPENING MAY COME FROM EXTERNAL SOURCES OR EVE N FROM MATERIALS ALREADY ON RECORD OR MAY BE DERIVED FROM THE DISCOV ERY OF NEW AND IMPORTANT MATTER OR FRESH FACTS. WORD 'INFORMATION' WOULD ALSO INCLUDE TRUE AND CORRECT STATE OF LAW DERIVED FROM RELEVANT JUDICIAL DECISIONS EITHER OF THE I.T. AUTHORITIES OR COURTS OF LAW. WH ETHER THE GROUND ON WHICH THE ORIGINAL ASSESSMENT IS BASED, IS HELD TO BE ERRONEOUS BY SUPREME COURT IN SOME OTHER CASE, THAT WILL ALSO AM OUNT TO A FRESH INFORMATION WHICH COMES INTO EXISTENCE SUBSEQUENT T O THE ORIGINAL ASSESSMENT. TAXPAYER WOULD NOTE ALLOWED TO TAKE ADV ANTAGE OF AN OVERSIGHT OR MISTAKE COMMITTED BY THE TAXING AUTHOR ITY AS HELD IN THE CASE OF KALYANJI MAVJI & CO. VS CIT(S) 102 ITR 287. THE BASIS FOR RE- OPENING OF THE ASSESSMENT WOULD CERTAINLY BE THE SO URCE OF INFORMATION. WHEN AN INCOME LIABLE TO TAX HAS ESCAPED ASSESSMENT IN THE ORIGINAL ASSESSMENT PROCEEDINGS DUE TO OVERSIGHT AND INADVER TENCE OR A MISTAKE COMMITTED BY THE ITO, HE HAS JURISDICTION TO RE-OPE N THE ASSESSMENT. REASSESSMENT IS PERMISSIBLE EVEN IF THE INFORMATION IS OBTAINED AFTER PROPER INVESTIGATION FROM THE MATERIAL ON RECORD OR FROM ANY ENQUIRY OR RESEARCH INTO FACTS OR LAW. IN VIEW OF THE ABOVE DI SCUSSION, I AM OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS G OT JURISDICTION IN REOPENING THE ASSESSMENT BY ISSUING NOTICE U/S,148 OF THE ACT AND THEREFORE THE GROUNDS OF APPEAL IS HEREBY DISMISSED . 11. ON MERITS THE LD. CIT (A) CONFIRMED THE ADDITIO NS MADE BY LD. AO. 12. AGGRIEVED BY THE ORDER OF LD. CIT (A) ASSESSEE IS IN APPEAL BEFORE US NOW. 13. AT THE OUTSET THE LD.AR SUBMITTED THAT GROUND N O.8 HAS BEEN RAISED CHALLENGING THE VALIDITY OF REOPENING O F ASSESSMENT BEYOND THE PERIOD OF 4 YEARS. 14. THE LD.AR SUBMITTED THAT THE LD.AO INITIATED TH E PENALTY PROCEEDINGS IN RESPECT OF THE ITEMS WHICH WERE CONS IDERED BY THE LD. AO AND THE ORIGINAL ASSESSMENT PROCEEDINGS. HE SUBMITTED THAT, ISSUES BEING SUBJECT MATTER OF REASONS RECORD ED FOR PAGE 7 OF 11 ITA NO.51/BANG/2019 REOPENING WERE CONSIDERED BY THE LD.AO AND THE ORIG INAL ASSESSMENT PROCEEDINGS. THE IT WAS SUBMITTED THAT, THE DETAILS OF BREAKAGES AND DAMAGES WERE PART OF STOCK STATEMENT FURNISHED ALONG WITH THE AUDIT REPORT AND ALSO THE TAX AUDIT REPORT FILED ALONG WITH THE RETURN OF INCOME WHEREIN THE LOSS OF STOCK QUANTITY WISE WAS INDICATED. 15. AS FAR AS THE EXPENDITURE OF EXCISE DUTY PAID I S CONCERNED THE LD.AR SUBMITTED THAT THE SPECIFIC QUERY WAS RAI SED BY THE LD. AO DURING THE COURSE OF HEARING AND THE INFORMATION WAS FURNISHED ALONG WITH LETTER DATED 26/11/2013. THE L D.AR PLACED RELIANCE ON THE SAID LETTER PLACED AT PAGE 33 OF PA PER BOOK WHEREIN PARAS 6 GIVES THE DETAILS IN RESPECT OF ARR ACK RENTALS. 16. HE THUS SUBMITTED THAT THE REOPENING BEYOND PER IOD OF 4 YEARS WITHOUT THERE BEING A SATISFACTION RECORDED B Y THE LD.AO REGARDING FAILURE ON BEHALF OF ASSESSEE TO TRULY AN D FULLY DISCLOSE ALL MATERIAL FACTS, IS BAD IN LAW. IN SUPPORT OF HI S CONTENTION, THE LD.AR PLACED RELIANCE ON FOLLOWING DECISIONS: ACIT VS FIS GLOBAL BUSINESS SOLUTIONS INDIA (P) LTD . (2019) 262 TAXMANN 369 (SC) CIT VS KELVINATOR INDIA LTD. REPORTED IN 320 ITR 56 1 (SC) ITO VS TECHSPAN INDIA PVT.LTD., (2018) 92 TAXMANN.C OM 361 (SC) REVOLUTION FOREVER MARKETING PVT.LTD. VS ITO REPORT ED IN (2019) 413 ITR 400 (DEL) CHAMP ENERGY VENTURES PVT.LTD. VS ITO (2019) 102 TAXMANN.COM 374 (BOM) ASIAN PAINTS LTD. VS DCIT & ANR. REPORTED IN (2009) 223 CTR 141(BOM) RALLIES INDIA LTD. VS ACIT & ANR. REPORTED IN (2010 ) 323 ITR 54 (BOM) PAGE 8 OF 11 ITA NO.51/BANG/2019 ICICI HOME FINANCE COMPANY LTD. VS ACIT REPORTED IN (2012) 25 TAXMANN.COM 241 (BOM) ASIATIC OXYGEN LTD. VS DCIT REPORTED IN (2015) 60 TAXMANN.COM 265 (CALCUTTA) CIT VS YOUNUS KUNJU REPORTED IN (1997) 228 ITR 147 (KERELA) 17. ON THE CONTRARY, THE LD.DR SUBMITTED THAT THE REASSESSMENT NOTICE THE PRESENT CASE IS VALID AND T HAT THE DISALLOWANCES MADE BY THE LD. AO COULD NOT HAVE BEE N ALLOWED AS AN EXPENDITURE. HE REITERATED THE OBSERVATIONS O F LD.CIT(A) THAT, EVEN IF THE INFORMATION WAS OBTAINED AFTER PR OPER INVESTIGATION FROM THE MATERIALS ON RECORD OR FROM ANY ENQUIRY RESEARCH INTO THE FACTS OR LAW, THE REASSESSMENT IS PERMISSIBLE. 18. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SI DES IN LIGHT OF RECORDS PLACED BEFORE US. 19. PRIMARILY, WE OBSERVED THAT THE LD.CIT(A) HAS R ECORDED THAT THE BASIS OF REOPENING IS CERTAINLY THE SOURCE OF I NFORMATION THAT IS ALREADY AVAILABLE ON RECORD. THE LD.CIT(A) FURTH ER RECORDS THAT IN THE ORIGINAL ASSESSMENT PROCEEDINGS DUE TO OVERS IGHT AND INADVERTENCE OR A MISTAKE COMMITTED BY THE ITO, THE INCUMBENT ASSESSING OFFICER HAS JURISDICTION TO REOPEN THE AS SESSMENT. 20. THIS ITSELF MAKES IT CLEAR THAT THERE WAS NO FR ESH MATERIALS AVAILABLE ON RECORD FOR INITIATING THE REASSESSMENT PROCEEDINGS. THE REOPENING OF ASSESSMENT BEYOND A PERIOD OF 4 YE ARS HAVE BEEN PROCEEDED WITH BY THE LD.AO BASED ON THE MATER IALS AVAILABLE ON RECORD. 21. FROM THE REPLIES FURNISHED BY ASSESSEE DURING T HE ORIGINAL ASSESSMENT PROCEEDINGS PLACED IN THE PAPER BOOK REL IED BY THE PAGE 9 OF 11 ITA NO.51/BANG/2019 LD.AR, WE NOTE THAT QUERIES WERE RAISED BY THE LD.A O ON THE SAME ISSUE AND ASSESSEE HAD FILED SUBMISSIONS IN RE SPECT OF THE ISSUES CONSIDERED FOR REOPENING THE ASSESSMENT. ON A CO-JOINT READING OF ALL THE MATERIALS FILED BY ASSESSEE BEFO RE THE LD.AO IN RESPECT OF ALLEGED ISSUES AND THE ASSESSMENT ORDER PASSED, IT NECESSARILY IMPLIES AN OPINION OF THE ERSTWHILE ASS ESSING OFFICER NOT TO CONSIDER THE ISSUES TO BE TAXABLE, THOUGH SI LENT IN THE ORIGINAL ASSESSMENT ORDER. THEREFORE AND THE SUBSE QUENT ISSUANCE OF NOTICE TO REOPEN THE ASSESSMENT ON SUCH ISSUES AMOUNTS TO CHANGE OF OPINION. 22. FURTHER THE REASONS RECORDED REPRODUCED HEREINA BOVE SUGGESTS THAT THERE WAS NO FAILURE ON BEHALF OF ASS ESSEE TO FULLY AND TRULY DISCLOSE ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT, WHICH IS A NECESSARY PRECONDITION FOR REOPENING AN ASSESSMENT BEYOND A PERIOD OF 4 YEARS AS STIPULATED UNDER THE ACT. 23. THE REASONS RECORDED ALSO REVEAL THAT, THERE HA S BEEN NO NEW MATERIAL AVAILABLE WITH THE LD.AO WHICH COULD J USTIFY THE REOPENING OF A CONCLUDED ASSESSMENT BEYOND A PERIOD OF 4 YEARS. RESPECTFULLY FOLLOWING THE RATIO IS LAID DOWN BY VA RIOUS DECISIONS CITED HEREINABOVE, WE SET ASIDE AND QUASH THE NOTIC E DATED 17/05/2016 SEEKING TO REOPEN A CONCLUDED ASSESSMENT TO BE BAD IN LAW. AS WE HAVE SET ASIDE AND QUASHED THE NOTICE OF REOPENING, CONSEQUENTIAL ASSESSMENT ORDER PASSED BY THE LD.AO STANDS TO BE QUASHED AND SET-ASIDE. PAGE 10 OF 11 ITA NO.51/BANG/2019 20. AS WE HAVE QUASHED THE ASSESSMENT ORDER PASSED BY THE LD.AO, WE DO NOT FIND IT NECESSARY TO ADJUDICATE TH E ISSUES ON MERITS ALLEGED BY ASSESSEE. ACCORDINGLY, APPEAL FILED BY ASSESSEE IS ALLOWED IN TERMS OF GROUND 8. IN THE RESULT APPEAL FILED BY ASSESSEE STANDS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH MARCH, 2021 SD/- SD/- (B.R BASKARAN) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL ME MBER BANGALORE, DATED, THE 8 TH MARCH, 2021. /VMS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE PAGE 11 OF 11 ITA NO.51/BANG/2019 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -3-2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -3-2021 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -3-2021 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -3-2021 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -3-2021 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -3-2021 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK -3-2021 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS
