M/S NAWEEN TRANSPORT COMPANY, BOKARO V. ACIT CIRCLE-2, HAZARIBAGH

ITA 56/RAN/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8631 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 05-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: INDERJEET SINGH
• Assessee Lawyers: D C AGARWAL
• Keywords: Question of law; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings; TDS
• Section: 143(3); 40(a)(ia); 194C; 113; 40a(ia); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 56/RAN/2018 ( ASSESSMENT YEAR : 2010-11) NAWEEN TRANSPORT COMPANY JARIDIH BAZAR, BERMO, BOKARO - 829114 / VS. ACIT CIRCLE -2, HAZARIBAGH ./ ./ PAN/GIR NO. : AADFN9613K ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI D. C. AGARWAL, ADVOCATE / RESPONDENT BY : SHRI INDERJEET SINGH, SR. CIT (DR) DATE OF HEARING 06/11/2019 !'# / DATE OF PRONOUNCEMENT 20/01/2020 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), HAZARIBAGH (CIT(A) IN SHORT), DATED 13.02.2018 ARI SING IN THE ASSESSMENT ORDER DATED 14.11.2017 PASSED BY THE ASSESSING OFFI CER (AO) UNDER S. 147/143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CO NCERNING AY 2010- 11. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER: 1. FOR THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX, (APPEALS) IS ILLEGAL, EXCESSIVE AND BEYOND THE FACT S AND CIRCUMSTANCES OF THE CASE AND AS SUCH IS NOT MAINTA INABLE. 2. FOR THAT ON PERUSAL OF THE ORDER, IT APPEARS THA T THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS DISALLOWED THE APPEAL ONLY ON THE BASIS THAT THE EVIDENCE PROVIDED WAS NE W ALTHOUGH HE HAS FAILED TO MENTION THAT THE EVIDENCES WERE ALREA DY PRODUCED BEFORE THE ASSESSING OFFICER AT THE TIME OF ORIGINA L ASSESSMENT DONE U/S 143(3) ON 23/01/2012. 3. FOR THAT THE LEARNED CIT (A) HAS COMPLETELY IGNO RED THE FACT THAT TDS WAS DULY DEDUCTED AND PAID AND PROOF OF THE SAM E WAS SUBMITTED WITH HIM. 4. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE MERITS OF THE CASE AND SHOUL D NOT HAVE FOCUSED ON TECHNICAL ISSUES. THE APPELLANT IS BEING PENALIZED FOR TECHNICAL ISSUES RATHER THAN ANY ESCAPEMENT OF INCO ME. 5. FOR THAT THE LEARNED CIT (A) OUGHT TO HAVE CONSI DERED THAT BEFORE THE SERVICE OF THE NOTICE THE ORDER WAS PASSED BY T HE LEARNED ASSESSING OFFICER AND HE OUGHT TO HAVE LOOKED INTO THE EVIDENCES PRODUCED BEFORE HIM BECAUSE THE LEARNED ASSESSING O FFICER HAD PASSED HIS ORDER IN HASTE. 6. FOR THAT THE REOPENING OF THE CASE U/S 14-TWAS B AD IN LAW ESPECIALLY IN VIEW OF THE FACT THAT THE ORIGINAL OR DER U/S 143(3) HAD ALREADY COVERED THE POINT OF TDS DEDUCTED AND D EPOSITED U/S 194C. 7. FOR THAT THE CIT (A) HAS ERRED IN NOT CONSIDERIN G THE FACT THAT COLUMN 27 (A) OF FORM 3CD OF THE AUDIT REPORT SPECI FICALLY MENTIONS THAT TDS PROVISION HAS BEEN PROPERLY COMPL IED. 8. FOR THAT THE CONFIRMATION OF ADDITION AT RS. 3,5 1,98,334/- IS ILLEGAL, AND BEYOND ALL CANON OF JUSTICE. 3. THE ASSESSEE IN THE INSTANT CASE HAS CHALLENGED THE ACTION OF THE AO BOTH ON MERITS AS WELL AS ON THE POINT OF UNLAWFUL USURPATION OF JURISDICTION UNDER S.147 OF THE ACT. 4. SINCE THE ASSESSEE HAS RAISED LEGAL QUESTION ON USURPATION OF JURISDICTION BY THE ASSESSING OFFICER (AO) TO REOPE N THE COMPLETED ASSESSMENT IN THE INSTANT CASE, IT WOULD BE PERTINE NT TO DEAL WITH THE AFORESAID QUESTION AT THE OUTSET. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 3 - 5. THE LEARNED AR FOR THE ASSESSEE AT THE OUTSET SU BMITTED THAT THE AO HAS WRONGLY ASSUMED THE JURISDICTION FOR MAKING REA SSESSMENT BY ISSUING NOTICE UNDER S.148 OF THE ACT WITHOUT AUTHORITY OF LAW. THE LD.AR SUBMITTED THAT THE INGREDIENTS OF SECTION 147/148 A RE NOT FULFILLED IN THE INSTANT CASE TO ENABLE THE AO TO EXERCISE JURISDICT ION AND TO PROCEED WITH RE-ASSESSMENT PROCEEDINGS. THE LEARNED AR FURTHER SUBMITTED THAT THE ASSESSMENT HAS BEEN REOPENED WITHOUT MEETING THE RE QUIREMENTS OF FIRST PROVISO TO SECTION 147 OF THE ACT. THE LEARNED AR NEXT SUBMITTED THAT THE ASSESSMENT FOR AY 2010-11 WAS EARLIER COMPLETED UND ER S.143(3) OF THE ACT VIDE ORDER DATED 23.01.2011 AND THE NOTICE FOR REASSESSMENT HAS BEEN ISSUED AFTER FOUR YEARS FROM THE END OF THE RELEVAN T AY 2010-11 ON 31.03.2017. THUS, THE AO WAS ENTITLED TO EXERCISE JURISDICTION UNDER S.147 OF THE ACT ONLY UPON FULFILLMENT OF ADDITIONA L CONDITIONS IMPOSED UNDER FIRST PROVISO TO SECTION 147 OF THE ACT. IT WAS ALLEGED THAT THE AO HAS ISSUED THE NOTICE UNDER S.147/148 OF THE ACT WI THOUT MEETING THESE REQUIREMENTS OF FIRST PROVISO TO SECTION 147 OF THE ACT. IT WAS FURTHER CONTENDED THAT THE ORIGINAL ASSESSMENT WAS MADE AFT ER PROPER ENQUIRY ON DEDUCTIBILITY OF TDS UNDER S.194C OF THE ACT AND OT HER PROVISIONS OF THE ACT AND THE ORIGINAL ASSESSMENT WAS PASSED AFTER PR OPER VERIFICATION OF TDS, RECONCILIATION OF ASSESSMENT AND PROOF REGARDI NG PAYMENT OF TAX/TDS CERTIFICATE IN RELATION TO VARIOUS EXPENSES . THE MATERIAL ALREADY PLACED BEFORE THE AO WAS LATER REVIEWED BY THE AUDI T PARTY/AO AND BASED ON SUCH REVIEW OF MATERIAL ALREADY AVAILABLE IN THE FILE OF THE AO, THE AO PROCEEDED TO INVOKE PROVISIONS OF SECTION 147 OF TH E ACT. THE LEARNED AR FOR THE ASSESSEE ALSO REFERRED TO THE REASONS RECOR DED AND CONTENDED THAT THERE IS NO ALLEGATION ON THE PART OF THE AO THAT T HE ASSESSEE HAS FAILED TO DISCLOSE ANY MATERIAL FACT FULLY AND TRULY AT THE T IME OF ORIGINAL ASSESSMENT AND THEREFORE THE ACTION OF REOPENING IS WITHOUT ANY LEGALLY SOUND BASIS FOR INVOKING THE PROVISIONS OF SECTION 147 OF THE ACT. IT WAS FURTHER ALLEGED THAT THE ACTION OF THE AO IS NOTHIN G BUT CHANGE OF OPINION ON THE SAME ISSUE BASED ON REVIEW OF MATERIAL ALREA DY PLACED ON RECORD WHICH IS NOT PERMISSIBLE IN LAW. IT WAS THUS ALLEG ED THAT THE ACT OF THE AO IN REOPENING THE COMPLETED ASSESSMENT AFTER FOUR YE ARS FROM THE END OF THE ASSESSMENT YEAR IS NEITHER SUSTAINABLE UNDER MA IN PROVISIONS OF ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 4 - SECTION 147 OF THE ACT NOR ON ACCOUNT OF STRINGENT EMBARGO PLACED UPON THE AO UNDER FIRST PROVISO THERETO. THE LEARNED AR ALSO SUBMITTED THAT IT IS NOT DISCERNIBLE FROM THE RECORD AS TO WHAT MATER IAL FACTS WERE NOT DISCLOSED FULLY AND TRULY WHICH HAS RESULTED IN ALL EGED ESCAPEMENT OF INCOME. IT WAS THUS CONTENDED THAT THE AO HAS WRON GFULLY ASSUMED THE JURISDICTION VESTED UNDER S.147 OF THE ACT WITHOUT MEETING LEGAL REQUIREMENTS. ON MERITS, THE LEARNED AR FOR THE AS SESSEE REFERRED TO THE WRITTEN SUBMISSIONS MADE BEFORE THE CIT(A) AS REPRO DUCED IN PARA 5 OF APPELLATE ORDER AND POINTED OUT THAT THE REQUIREMEN TS OF CHAPTER XVII TOWARDS VICARIOUS LIABILITY PLACED UPON THE ASSESSE E HAS BEEN DULY COMPLIED WITH AND THE PROVISIONS OF SECTION 40(A)(I A) OF THE ACT FOR DISALLOWANCE OF EXPENSES ARE NOT ATTRACTED. 6. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ACTION OF THE AO ON THE ISSUE OF VALIDITY OF USURPTION OF JURISDICTI ON UNDER S.147 OF THE ACT. IT WAS SUBMITTED THAT THE ASSESSEE HAS INCURR ED STAGGERING AMOUNT OF EXPENSES PEGGED AT RS.2,19,94,327/- ON ACCOUNT OF L OADING CHARGES/UNLOADING CHARGES AND LABOUR EXPENSES. THE ASSESSEE HAS NEITHER DEDUCTED TDS UNDER S.194C OF THE ACT ON SUCH PAYMEN TS NOR FILED ANY EVIDENCE AS OBLIGATED UNDER THE PROVISIONS CODIFIED IN CHAPTER XVII-B OF THE ACT. IN THE CIRCUMSTANCES, THE AO HAS CORRECTL Y REOPENED THE ASSESSMENT IN ACCORDANCE WITH LAW AFTER TAKING NECE SSARY APPROVALS OF THE SUPERIOR AUTHORITY CONTEMPLATED UNDER S.151 OF THE ACT. IT WAS THUS PLEADED THAT NO INTERFERENCE WITH THE ORDER OF THE CIT(A) IS CALLED FOR ON THE LEGAL GROUND RAISED BY THE ASSESSEE AT THIS BEL ATED STAGE AND NOT OBJECTED TO BEFORE THE CIT(A). 7. THE LEGAL ISSUE ON VALIDITY OF ASSUMPTION OF JU RISDICTION UNDER S.147/148 IS DEALT WITH HEREUNDER. 7.1. THE REASONS RECORDED UNDER S.148(2) GIVING CAU SE FOR ISSUANCE OF NOTICE UNDER S.148 IS PERTINENT TO DETERMINE THE JU RISDICTIONAL ISSUE. ACCORDINGLY, THE REASONS SO RECORDED BY THE AO FOR REOPENING THE COMPLETED ASSESSMENT IS REPRODUCED HEREUNDER:- ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 5 - IN THE P&L A/C, ASSESSEE HAS DEBITED EXPENSE OF R S.1,40,59,105/- UNDER THE HEAD LOADING CHARGES, RS.63,82,446/- UND ER THE HEAD UNLOADING CHARGES AND RS.15,52,776/- UNDER THE HEAD OF LABOUR EXPENSES. THE ASSESSEE HAS NEITHER DEDUCTED TDS U/ S 194C NOR FILED ANY DETAILS IN RESPECT OF THESE EXPENSE WHICH COMES TO RS.2,19,94,327/- 14059105 + 6382446 + 1552776], WHICH ATTRACTS THE P ROVISION OF SECTION 40A(IA) OF THE I.T. ACT, 1961. ALSO IN COL UMN 27(A) OF FORM NO.3CD THE AUDITOR HAS MENTIONED DEDUCTION OF TAX A T SOURCE REGARDING THE PAYMENT THEREOF TO THE CREDIT OF CENTRAL GOVT. UNDER PROVISION OF CHAPTER XVII-B BUT THE EVIDENCE WAS NOT AVAILABLE. FURTHER, ASSESSEE HAS DONE CONTRACTUAL WORK AT VIS A STEEL LTD., DVC, CTPS CHANDRAPURA AND CLAIMED RS.1,44,38,977/- UNDER THE HEAD TRANSPORTING CHARGES. THE ASSESSEE HAD MADE PAYME NT ABOVE RS.1 LACS BUT NOT FILED ANY DETAILS OF TDS MADE ON THESE PAYM ENTS. THEREFORE, I HAVE REASON TO BELIEVE THAT AN AMOUNT OF RS.3,64,33,304/- [2,19,94,327 + 14438977] ESCAPED I NCOME FOR WHICH ACTION AS PER 147/148 IS TO BE INITIATED. 7.2. BEFORE WE LOOK INTO THE REASONS SO RECORDED, I T WILL BE PERTINENT TO NOTICE THAT THE INSTANT CASE PERTAINS TO AY 2011-12 WHERE THE ASSESSMENT ORDER WAS EARLIER FRAMED UNDER S.143(3) VIDE ORDER DATED 23/01/2011. AS POINTED OUT ON BEHALF OF THE ASSESSEE AND CAN ALSO BE SEEN FROM THE ASSESSMENT ORDER ITSELF SPECIFIC INQUIRY ABOUT DEDU CTION OF TDS ON EXPENSES WAS MADE AND THE ASSESSMENT WAS FRAMED THE REUPON. THUS, AS PER THE ASSESSMENT ORDER ITSELF, AN INQUIRY WAS MAD E ON DEDUCTION OF TDS. THE ASSESSMENT WAS THEREAFTER FRAMED WHEREIN NO DIS ALLOWANCE WAS MADE IN CONSEQUENCE OF AFORESAID INQUIRY. 7.3. SUBSEQUENTLY, A NOTICE UNDER S.148 OF THE ACT HAS BEEN ISSUED AFTER APPROVAL OF THE PR.CIT UNDER S.151 OF THE ACT ON 30 .03.2017 MAKING OUT A CASE OF PURPORTED INFRINGEMENT OF SECTION 194C OF T HE ACT OSTENSIBLY ON REVIEW OF EXISTING RECORDS. IN CONSEQUENCE OF RELO OK AT RECORDS, THE AO APPEARS TO HAVE RECORDED REASON FOR RE-OPENING THE COMPLETED ASSESSMENT AFTER FOUR YEARS FROM THE END OF THE RELEVANT AY 20 10-11 AS NOTED IN EARLIER PARAS. 7.4 IN THE BACKGROUND OF AFORESAID FACTS, WE NOW TA KE NOTICE OF THE REASONS RECORDED AS REPRODUCED EARLIER. A BARE PERU SAL OF THE REASONS RECORDED SUGGESTS THAT THE AO HAS PROPELLED HIMSELF TO REOPEN THE ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 6 - ASSESSMENT FOR THE SIMPLE REASON THAT THE ASSESSEE IS FOUND TO HAVE NOT COMPLIED WITH THE PROVISIONS OF CHAPTER XVII-B OF T HE ACT INCLUDING SECTION 194C OF THE ACT THEREUNDER. WE DO NOT FIND ANY REFERENCE TO THE ASSESSMENT MADE UNDER S.143(3) OF THE ACT EARLIER I N THE REASONS SO RECORDED. WE ALSO DO NOT FIND ANY ALLEGATION IN TH E REASONS RECORDED AGAINST THE ASSESSEE THAT INCOME HAS ESCAPED ASSESS MENT OWING TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FA CTS FULLY AND TRULY AT THE TIME OF ASSESSMENT. IT IS NOT DISCERNIBLE FROM THE REASONS RECORDED AS TO HOW THE ENQUIRY MADE ON THE VERY ISSUE AT THE TIME OF THE ORIGINAL ASSESSMENT SUFFERED FROM ERROR AND WAS UNSUSTAINAB LE ON FACTS AND LAW. IT IS WELL SETTLED THAT MERE REVIEW OF EXISTING FAC TS BY THE SAME AUTHORITY LATER TO COME TO A DIFFERENT CONCLUSION AND THEREBY REOPENING THE COMPLETED ASSESSMENT IS NOT PERMISSIBLE IN LAW. NO TABLY, SECTION 194C R.W.S. 40(A)(IA) OF THE ACT IS NOT PLENARY IN NATUR E AND IS SUBJECT TO CERTAIN EXCEPTIONS AND ALSO HAVE BEEN MATTER OF LEGAL INTER PRETATION FROM TIME-TO- TIME. THEREFORE, WHERE THE ISSUE IN CONTROVERSY HA S BEEN SUBJECT MATTER OF SPECIFIC EXAMINATION AND ACCEPTANCE, A LOGICAL I NFERENCE WOULD BE THAT AN OPINION ON THE ISSUE WAS FRAMED BY STATUTORY AUT HORITY WHEREBY DISALLOWANCE UNDER S.40(A)(IA) OF THE ACT WAS NOT F OUND ATTRACTED. NEEDLESS TO SAY, REOPENING OF A COMPLETED ASSESSMEN T UNDER S.143(3) OF THE ACT IS NOT PERMISSIBLE ON A MERE CHANGE OF OPIN ION ON THE SAME ISSUE EXAMINED EARLIER. THEREFORE, IT IS DIFFICULT TO AG REE THAT THE AO HAS PASSED THE STRINGENT TEST LAID DOWN IN MAIN PROVISI ON AND FIRST PROVISO THERETO FOR CONFERMENT OF POWER UNDER S.147 OF THE ACT. SECTION 147 OF THE ACT IS A SUBSTANTIVE PROVISION GRANTING JURISDI CTION TO REOPEN COMPLETED ASSESSMENT AND THEREFORE CONDITIONS STIPU LATED THEREIN ARE STRICTLY REQUIRED TO BE ADHERED. SECTION 147 OF TH E ACT IS STRUCTURED WITH INBUILT SAFEGUARDS. THE AO IS NOT PERMITTED TO EXE RCISE THE POWER UNDER S.147 OF THE ACT ARBITRARILY OR MECHANICALLY. 7.5 IN THE INSTANT CASE, WE FIND THAT THE ACTION U NDER S.147 OF THE ACT WAS SOUGHT TO BE TAKEN IN RESPECT OF ASSESSMENT COMPLET ED UNDER S.143(3) OF THE ACT EARLIER AFTER EXPIRY OF FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR ALLEGING ESCAPEMENT OF INCOME FROM TAXATION. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 7 - THEREFORE, THE ACTION OF THE AO IS ALSO REQUIRED TO BE TESTED ON THE TOUCHSTONE OF EMBARGO PLACED BY THE FIRST PROVISO T O SECTION 147 OF THE ACT. THE FIRST PROVISO TO SECTION 147 OF THE ACT P LACES ADDITIONAL RESTRICTIONS ON THE AO FOR USURPTION OF JURISDICTIO N. AS PER THE PROVISO, THE ESCAPEMENT OF CHARGEABLE INCOME SHOULD BE BY RE ASONS OF THE FAILURE ON THE PART OF THE ASSESSEE TO INTER-ALIA DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT OF THE ASSE SSEE FOR THE RELEVANT ASSESSMENT YEAR. WE DO NOT FIND ANYTHING IN THE R EASONS RECORDED WHICH GOES TO DEMONSTRATE THAT THE ASSESSEE HAS FAILED TO DISCLOSE ANY MATERIAL FACT RELEVANT FOR ASSESSMENT IN THE ORIGINAL PROCEE DINGS. AS A MATTER OF FACT, THERE IS NO ALLEGATION OF THE AO ON THIS SCOR E IN THE REASONS RECORDED AS NOTED ABOVE. WE DO NOT FIND ANYTHING ON RECORD TO SHOW AS TO WHAT MATERIAL FACTS REMAINED TO BE DISCLOSED BY THE ASSE SSEE IN THE ORIGINAL ASSESSMENT PROCEEDINGS. SIGNIFICANTLY, THE RE-ASSE SSMENT ORDER PASSED UNDER S.147 OF THE ACT ALSO DOES NOT PORTRAY ANY CO NCERN OF THE AO ON THIS ASPECT. OSTENSIBLY, IN THE ABSENCE OF AN EXPR ESS ALLEGATION AS A STARTING POINT, THE CONDITIONS STIPULATED UNDER FIR ST PROVISO UNDER S.147 OF THE ACT ARE NOT COMPLIED WITH. IN THIS EVENT, WHER E EMBARGO PLACED BY THE FIRST PROVISO COULD NOT BE OVERCOME, THE LEGITI MACY OF NOTICE ISSUED UNDER THE PROVISIONS OF SECTION 147 OF THE ACT IS V ITIATED. IT IS ALSO THE CATEGORICAL CASE OF ASSESSEE THAT TDS OBLIGATIONS U NDER S.194C OF THE ACT WERE DULY MET AND CHALLANS FOR PAYMENTS WERE ALSO P LACED BEFORE LOWER AUTHORITIES. THE ENTIRE REASSESSMENT PROCEEDINGS, T HUS, IS WITHOUT JURISDICTION AND LIABLE TO ANNULLED. THE CONSEQUEN T RE-ASSESSMENT ORDER IS ALSO THEREFORE LIABLE TO BE STRUCK DOWN AND CANCELL ED AS BAD IN LAW. WE DO SO ACCORDINGLY. 7.6 AT THIS STAGE, IT WILL ALSO BE RELEVANT TO TAKE NOTE OF THE OBJECTION ON BEHALF OF THE REVENUE THAT CHALLENGE TO JURISDIC TION UNDER S.147 OF THE ACT HAS BEEN RAISED FOR THE FIRST TIME BEFORE THE T RIBUNAL. IN THIS REGARD, WE OBSERVE THAT IT IS WELL SETTLED THAT THE QUESTIO N OF LACK OF JURISDICTION IS PURE QUESTION OF LAW CAPABLE OF BEING ADJUDGED O N BE BASIS OF MATERIAL ON RECORD. THERE IS NO ESTOPPEL AVAILABLE TO THE R EVENUE ON THE GROUND THAT ASSESSEE DID NOT RAISE THE QUESTION OF JURISDI CTION BEFORE THE LOWER ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 8 - AUTHORITIES. ESTOPPEL CANNOT GIVE JURISDICTION OVE R A MATTER WHICH IS OTHERWISE LACKING. IF AN AUTHORITY IS FOUND TO HAV E NO JURISDICTION TO INVOKE REOPENING OF A COMPLETED ASSESSMENT, THE CON SENT OR WAIVER CAN NEVER GIVE THE JURISDICTION TO THE AUTHORITY CONCER NED. SUCH VIEW HAS BEEN EXPRESSED J. S. PARKER 94 ITR 616 (GUJ) & P. V. DOSHI VS. CIT 113 ITR 22 (GUJ). 7.7 IN VIEW OF OUR ABOVE FINDINGS THAT THE ISSUANCE OF NOTICE UNDER S.147/148 OF THE ACT IS VOID AB INITIO AND ACCORDINGLY REASSESSMENT ORDER IS WITHOUT JURISDICTION AND THEREFORE ILLEGAL, WE D O NOT CONSIDER IT EXPEDIENT TO DEAL WITH THE MERITS OF THE FACTUAL AS PECTS OF THE CASE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . SD/- SD/- (MADHUMITA ROY) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER RANCHI: DATED 20/01/2020 TRUE COPY S. K. SINHA / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 / DR, ITAT, RANCHI 6. 278 9 / GUARD FILE. BY ORDER, SR. PRIVATE SECRETARY ITAT, AHMEDABAD THIS ORDER PRONOUNCED IN OPEN COURT ON 20/01/2020 IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 56/RAN/2018 ( ASSESSMENT YEAR : 2010-11) NAWEEN TRANSPORT COMPANY JARIDIH BAZAR, BERMO, BOKARO - 829114 / VS. ACIT CIRCLE -2, HAZARIBAGH ./ ./ PAN/GIR NO. : AADFN9613K ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI D. C. AGARWAL, ADVOCATE / RESPONDENT BY : SHRI INDERJEET SINGH, SR. CIT (DR) DATE OF HEARING 06/11/2019 !'# / DATE OF PRONOUNCEMENT 20/01/2020 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), HAZARIBAGH (CIT(A) IN SHORT), DATED 13.02.2018 ARI SING IN THE ASSESSMENT ORDER DATED 14.11.2017 PASSED BY THE ASSESSING OFFI CER (AO) UNDER S. 147/143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CO NCERNING AY 2010- 11. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER: 1. FOR THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX, (APPEALS) IS ILLEGAL, EXCESSIVE AND BEYOND THE FACT S AND CIRCUMSTANCES OF THE CASE AND AS SUCH IS NOT MAINTA INABLE. 2. FOR THAT ON PERUSAL OF THE ORDER, IT APPEARS THA T THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS DISALLOWED THE APPEAL ONLY ON THE BASIS THAT THE EVIDENCE PROVIDED WAS NE W ALTHOUGH HE HAS FAILED TO MENTION THAT THE EVIDENCES WERE ALREA DY PRODUCED BEFORE THE ASSESSING OFFICER AT THE TIME OF ORIGINA L ASSESSMENT DONE U/S 143(3) ON 23/01/2012. 3. FOR THAT THE LEARNED CIT (A) HAS COMPLETELY IGNO RED THE FACT THAT TDS WAS DULY DEDUCTED AND PAID AND PROOF OF THE SAM E WAS SUBMITTED WITH HIM. 4. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE MERITS OF THE CASE AND SHOUL D NOT HAVE FOCUSED ON TECHNICAL ISSUES. THE APPELLANT IS BEING PENALIZED FOR TECHNICAL ISSUES RATHER THAN ANY ESCAPEMENT OF INCO ME. 5. FOR THAT THE LEARNED CIT (A) OUGHT TO HAVE CONSI DERED THAT BEFORE THE SERVICE OF THE NOTICE THE ORDER WAS PASSED BY T HE LEARNED ASSESSING OFFICER AND HE OUGHT TO HAVE LOOKED INTO THE EVIDENCES PRODUCED BEFORE HIM BECAUSE THE LEARNED ASSESSING O FFICER HAD PASSED HIS ORDER IN HASTE. 6. FOR THAT THE REOPENING OF THE CASE U/S 14-TWAS B AD IN LAW ESPECIALLY IN VIEW OF THE FACT THAT THE ORIGINAL OR DER U/S 143(3) HAD ALREADY COVERED THE POINT OF TDS DEDUCTED AND D EPOSITED U/S 194C. 7. FOR THAT THE CIT (A) HAS ERRED IN NOT CONSIDERIN G THE FACT THAT COLUMN 27 (A) OF FORM 3CD OF THE AUDIT REPORT SPECI FICALLY MENTIONS THAT TDS PROVISION HAS BEEN PROPERLY COMPL IED. 8. FOR THAT THE CONFIRMATION OF ADDITION AT RS. 3,5 1,98,334/- IS ILLEGAL, AND BEYOND ALL CANON OF JUSTICE. 3. THE ASSESSEE IN THE INSTANT CASE HAS CHALLENGED THE ACTION OF THE AO BOTH ON MERITS AS WELL AS ON THE POINT OF UNLAWFUL USURPATION OF JURISDICTION UNDER S.147 OF THE ACT. 4. SINCE THE ASSESSEE HAS RAISED LEGAL QUESTION ON USURPATION OF JURISDICTION BY THE ASSESSING OFFICER (AO) TO REOPE N THE COMPLETED ASSESSMENT IN THE INSTANT CASE, IT WOULD BE PERTINE NT TO DEAL WITH THE AFORESAID QUESTION AT THE OUTSET. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 3 - 5. THE LEARNED AR FOR THE ASSESSEE AT THE OUTSET SU BMITTED THAT THE AO HAS WRONGLY ASSUMED THE JURISDICTION FOR MAKING REA SSESSMENT BY ISSUING NOTICE UNDER S.148 OF THE ACT WITHOUT AUTHORITY OF LAW. THE LD.AR SUBMITTED THAT THE INGREDIENTS OF SECTION 147/148 A RE NOT FULFILLED IN THE INSTANT CASE TO ENABLE THE AO TO EXERCISE JURISDICT ION AND TO PROCEED WITH RE-ASSESSMENT PROCEEDINGS. THE LEARNED AR FURTHER SUBMITTED THAT THE ASSESSMENT HAS BEEN REOPENED WITHOUT MEETING THE RE QUIREMENTS OF FIRST PROVISO TO SECTION 147 OF THE ACT. THE LEARNED AR NEXT SUBMITTED THAT THE ASSESSMENT FOR AY 2010-11 WAS EARLIER COMPLETED UND ER S.143(3) OF THE ACT VIDE ORDER DATED 23.01.2011 AND THE NOTICE FOR REASSESSMENT HAS BEEN ISSUED AFTER FOUR YEARS FROM THE END OF THE RELEVAN T AY 2010-11 ON 31.03.2017. THUS, THE AO WAS ENTITLED TO EXERCISE JURISDICTION UNDER S.147 OF THE ACT ONLY UPON FULFILLMENT OF ADDITIONA L CONDITIONS IMPOSED UNDER FIRST PROVISO TO SECTION 147 OF THE ACT. IT WAS ALLEGED THAT THE AO HAS ISSUED THE NOTICE UNDER S.147/148 OF THE ACT WI THOUT MEETING THESE REQUIREMENTS OF FIRST PROVISO TO SECTION 147 OF THE ACT. IT WAS FURTHER CONTENDED THAT THE ORIGINAL ASSESSMENT WAS MADE AFT ER PROPER ENQUIRY ON DEDUCTIBILITY OF TDS UNDER S.194C OF THE ACT AND OT HER PROVISIONS OF THE ACT AND THE ORIGINAL ASSESSMENT WAS PASSED AFTER PR OPER VERIFICATION OF TDS, RECONCILIATION OF ASSESSMENT AND PROOF REGARDI NG PAYMENT OF TAX/TDS CERTIFICATE IN RELATION TO VARIOUS EXPENSES . THE MATERIAL ALREADY PLACED BEFORE THE AO WAS LATER REVIEWED BY THE AUDI T PARTY/AO AND BASED ON SUCH REVIEW OF MATERIAL ALREADY AVAILABLE IN THE FILE OF THE AO, THE AO PROCEEDED TO INVOKE PROVISIONS OF SECTION 147 OF TH E ACT. THE LEARNED AR FOR THE ASSESSEE ALSO REFERRED TO THE REASONS RECOR DED AND CONTENDED THAT THERE IS NO ALLEGATION ON THE PART OF THE AO THAT T HE ASSESSEE HAS FAILED TO DISCLOSE ANY MATERIAL FACT FULLY AND TRULY AT THE T IME OF ORIGINAL ASSESSMENT AND THEREFORE THE ACTION OF REOPENING IS WITHOUT ANY LEGALLY SOUND BASIS FOR INVOKING THE PROVISIONS OF SECTION 147 OF THE ACT. IT WAS FURTHER ALLEGED THAT THE ACTION OF THE AO IS NOTHIN G BUT CHANGE OF OPINION ON THE SAME ISSUE BASED ON REVIEW OF MATERIAL ALREA DY PLACED ON RECORD WHICH IS NOT PERMISSIBLE IN LAW. IT WAS THUS ALLEG ED THAT THE ACT OF THE AO IN REOPENING THE COMPLETED ASSESSMENT AFTER FOUR YE ARS FROM THE END OF THE ASSESSMENT YEAR IS NEITHER SUSTAINABLE UNDER MA IN PROVISIONS OF ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 4 - SECTION 147 OF THE ACT NOR ON ACCOUNT OF STRINGENT EMBARGO PLACED UPON THE AO UNDER FIRST PROVISO THERETO. THE LEARNED AR ALSO SUBMITTED THAT IT IS NOT DISCERNIBLE FROM THE RECORD AS TO WHAT MATER IAL FACTS WERE NOT DISCLOSED FULLY AND TRULY WHICH HAS RESULTED IN ALL EGED ESCAPEMENT OF INCOME. IT WAS THUS CONTENDED THAT THE AO HAS WRON GFULLY ASSUMED THE JURISDICTION VESTED UNDER S.147 OF THE ACT WITHOUT MEETING LEGAL REQUIREMENTS. ON MERITS, THE LEARNED AR FOR THE AS SESSEE REFERRED TO THE WRITTEN SUBMISSIONS MADE BEFORE THE CIT(A) AS REPRO DUCED IN PARA 5 OF APPELLATE ORDER AND POINTED OUT THAT THE REQUIREMEN TS OF CHAPTER XVII TOWARDS VICARIOUS LIABILITY PLACED UPON THE ASSESSE E HAS BEEN DULY COMPLIED WITH AND THE PROVISIONS OF SECTION 40(A)(I A) OF THE ACT FOR DISALLOWANCE OF EXPENSES ARE NOT ATTRACTED. 6. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ACTION OF THE AO ON THE ISSUE OF VALIDITY OF USURPTION OF JURISDICTI ON UNDER S.147 OF THE ACT. IT WAS SUBMITTED THAT THE ASSESSEE HAS INCURR ED STAGGERING AMOUNT OF EXPENSES PEGGED AT RS.2,19,94,327/- ON ACCOUNT OF L OADING CHARGES/UNLOADING CHARGES AND LABOUR EXPENSES. THE ASSESSEE HAS NEITHER DEDUCTED TDS UNDER S.194C OF THE ACT ON SUCH PAYMEN TS NOR FILED ANY EVIDENCE AS OBLIGATED UNDER THE PROVISIONS CODIFIED IN CHAPTER XVII-B OF THE ACT. IN THE CIRCUMSTANCES, THE AO HAS CORRECTL Y REOPENED THE ASSESSMENT IN ACCORDANCE WITH LAW AFTER TAKING NECE SSARY APPROVALS OF THE SUPERIOR AUTHORITY CONTEMPLATED UNDER S.151 OF THE ACT. IT WAS THUS PLEADED THAT NO INTERFERENCE WITH THE ORDER OF THE CIT(A) IS CALLED FOR ON THE LEGAL GROUND RAISED BY THE ASSESSEE AT THIS BEL ATED STAGE AND NOT OBJECTED TO BEFORE THE CIT(A). 7. THE LEGAL ISSUE ON VALIDITY OF ASSUMPTION OF JU RISDICTION UNDER S.147/148 IS DEALT WITH HEREUNDER. 7.1. THE REASONS RECORDED UNDER S.148(2) GIVING CAU SE FOR ISSUANCE OF NOTICE UNDER S.148 IS PERTINENT TO DETERMINE THE JU RISDICTIONAL ISSUE. ACCORDINGLY, THE REASONS SO RECORDED BY THE AO FOR REOPENING THE COMPLETED ASSESSMENT IS REPRODUCED HEREUNDER:- ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 5 - IN THE P&L A/C, ASSESSEE HAS DEBITED EXPENSE OF R S.1,40,59,105/- UNDER THE HEAD LOADING CHARGES, RS.63,82,446/- UND ER THE HEAD UNLOADING CHARGES AND RS.15,52,776/- UNDER THE HEAD OF LABOUR EXPENSES. THE ASSESSEE HAS NEITHER DEDUCTED TDS U/ S 194C NOR FILED ANY DETAILS IN RESPECT OF THESE EXPENSE WHICH COMES TO RS.2,19,94,327/- 14059105 + 6382446 + 1552776], WHICH ATTRACTS THE P ROVISION OF SECTION 40A(IA) OF THE I.T. ACT, 1961. ALSO IN COL UMN 27(A) OF FORM NO.3CD THE AUDITOR HAS MENTIONED DEDUCTION OF TAX A T SOURCE REGARDING THE PAYMENT THEREOF TO THE CREDIT OF CENTRAL GOVT. UNDER PROVISION OF CHAPTER XVII-B BUT THE EVIDENCE WAS NOT AVAILABLE. FURTHER, ASSESSEE HAS DONE CONTRACTUAL WORK AT VIS A STEEL LTD., DVC, CTPS CHANDRAPURA AND CLAIMED RS.1,44,38,977/- UNDER THE HEAD TRANSPORTING CHARGES. THE ASSESSEE HAD MADE PAYME NT ABOVE RS.1 LACS BUT NOT FILED ANY DETAILS OF TDS MADE ON THESE PAYM ENTS. THEREFORE, I HAVE REASON TO BELIEVE THAT AN AMOUNT OF RS.3,64,33,304/- [2,19,94,327 + 14438977] ESCAPED I NCOME FOR WHICH ACTION AS PER 147/148 IS TO BE INITIATED. 7.2. BEFORE WE LOOK INTO THE REASONS SO RECORDED, I T WILL BE PERTINENT TO NOTICE THAT THE INSTANT CASE PERTAINS TO AY 2011-12 WHERE THE ASSESSMENT ORDER WAS EARLIER FRAMED UNDER S.143(3) VIDE ORDER DATED 23/01/2011. AS POINTED OUT ON BEHALF OF THE ASSESSEE AND CAN ALSO BE SEEN FROM THE ASSESSMENT ORDER ITSELF SPECIFIC INQUIRY ABOUT DEDU CTION OF TDS ON EXPENSES WAS MADE AND THE ASSESSMENT WAS FRAMED THE REUPON. THUS, AS PER THE ASSESSMENT ORDER ITSELF, AN INQUIRY WAS MAD E ON DEDUCTION OF TDS. THE ASSESSMENT WAS THEREAFTER FRAMED WHEREIN NO DIS ALLOWANCE WAS MADE IN CONSEQUENCE OF AFORESAID INQUIRY. 7.3. SUBSEQUENTLY, A NOTICE UNDER S.148 OF THE ACT HAS BEEN ISSUED AFTER APPROVAL OF THE PR.CIT UNDER S.151 OF THE ACT ON 30 .03.2017 MAKING OUT A CASE OF PURPORTED INFRINGEMENT OF SECTION 194C OF T HE ACT OSTENSIBLY ON REVIEW OF EXISTING RECORDS. IN CONSEQUENCE OF RELO OK AT RECORDS, THE AO APPEARS TO HAVE RECORDED REASON FOR RE-OPENING THE COMPLETED ASSESSMENT AFTER FOUR YEARS FROM THE END OF THE RELEVANT AY 20 10-11 AS NOTED IN EARLIER PARAS. 7.4 IN THE BACKGROUND OF AFORESAID FACTS, WE NOW TA KE NOTICE OF THE REASONS RECORDED AS REPRODUCED EARLIER. A BARE PERU SAL OF THE REASONS RECORDED SUGGESTS THAT THE AO HAS PROPELLED HIMSELF TO REOPEN THE ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 6 - ASSESSMENT FOR THE SIMPLE REASON THAT THE ASSESSEE IS FOUND TO HAVE NOT COMPLIED WITH THE PROVISIONS OF CHAPTER XVII-B OF T HE ACT INCLUDING SECTION 194C OF THE ACT THEREUNDER. WE DO NOT FIND ANY REFERENCE TO THE ASSESSMENT MADE UNDER S.143(3) OF THE ACT EARLIER I N THE REASONS SO RECORDED. WE ALSO DO NOT FIND ANY ALLEGATION IN TH E REASONS RECORDED AGAINST THE ASSESSEE THAT INCOME HAS ESCAPED ASSESS MENT OWING TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FA CTS FULLY AND TRULY AT THE TIME OF ASSESSMENT. IT IS NOT DISCERNIBLE FROM THE REASONS RECORDED AS TO HOW THE ENQUIRY MADE ON THE VERY ISSUE AT THE TIME OF THE ORIGINAL ASSESSMENT SUFFERED FROM ERROR AND WAS UNSUSTAINAB LE ON FACTS AND LAW. IT IS WELL SETTLED THAT MERE REVIEW OF EXISTING FAC TS BY THE SAME AUTHORITY LATER TO COME TO A DIFFERENT CONCLUSION AND THEREBY REOPENING THE COMPLETED ASSESSMENT IS NOT PERMISSIBLE IN LAW. NO TABLY, SECTION 194C R.W.S. 40(A)(IA) OF THE ACT IS NOT PLENARY IN NATUR E AND IS SUBJECT TO CERTAIN EXCEPTIONS AND ALSO HAVE BEEN MATTER OF LEGAL INTER PRETATION FROM TIME-TO- TIME. THEREFORE, WHERE THE ISSUE IN CONTROVERSY HA S BEEN SUBJECT MATTER OF SPECIFIC EXAMINATION AND ACCEPTANCE, A LOGICAL I NFERENCE WOULD BE THAT AN OPINION ON THE ISSUE WAS FRAMED BY STATUTORY AUT HORITY WHEREBY DISALLOWANCE UNDER S.40(A)(IA) OF THE ACT WAS NOT F OUND ATTRACTED. NEEDLESS TO SAY, REOPENING OF A COMPLETED ASSESSMEN T UNDER S.143(3) OF THE ACT IS NOT PERMISSIBLE ON A MERE CHANGE OF OPIN ION ON THE SAME ISSUE EXAMINED EARLIER. THEREFORE, IT IS DIFFICULT TO AG REE THAT THE AO HAS PASSED THE STRINGENT TEST LAID DOWN IN MAIN PROVISI ON AND FIRST PROVISO THERETO FOR CONFERMENT OF POWER UNDER S.147 OF THE ACT. SECTION 147 OF THE ACT IS A SUBSTANTIVE PROVISION GRANTING JURISDI CTION TO REOPEN COMPLETED ASSESSMENT AND THEREFORE CONDITIONS STIPU LATED THEREIN ARE STRICTLY REQUIRED TO BE ADHERED. SECTION 147 OF TH E ACT IS STRUCTURED WITH INBUILT SAFEGUARDS. THE AO IS NOT PERMITTED TO EXE RCISE THE POWER UNDER S.147 OF THE ACT ARBITRARILY OR MECHANICALLY. 7.5 IN THE INSTANT CASE, WE FIND THAT THE ACTION U NDER S.147 OF THE ACT WAS SOUGHT TO BE TAKEN IN RESPECT OF ASSESSMENT COMPLET ED UNDER S.143(3) OF THE ACT EARLIER AFTER EXPIRY OF FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR ALLEGING ESCAPEMENT OF INCOME FROM TAXATION. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 7 - THEREFORE, THE ACTION OF THE AO IS ALSO REQUIRED TO BE TESTED ON THE TOUCHSTONE OF EMBARGO PLACED BY THE FIRST PROVISO T O SECTION 147 OF THE ACT. THE FIRST PROVISO TO SECTION 147 OF THE ACT P LACES ADDITIONAL RESTRICTIONS ON THE AO FOR USURPTION OF JURISDICTIO N. AS PER THE PROVISO, THE ESCAPEMENT OF CHARGEABLE INCOME SHOULD BE BY RE ASONS OF THE FAILURE ON THE PART OF THE ASSESSEE TO INTER-ALIA DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT OF THE ASSE SSEE FOR THE RELEVANT ASSESSMENT YEAR. WE DO NOT FIND ANYTHING IN THE R EASONS RECORDED WHICH GOES TO DEMONSTRATE THAT THE ASSESSEE HAS FAILED TO DISCLOSE ANY MATERIAL FACT RELEVANT FOR ASSESSMENT IN THE ORIGINAL PROCEE DINGS. AS A MATTER OF FACT, THERE IS NO ALLEGATION OF THE AO ON THIS SCOR E IN THE REASONS RECORDED AS NOTED ABOVE. WE DO NOT FIND ANYTHING ON RECORD TO SHOW AS TO WHAT MATERIAL FACTS REMAINED TO BE DISCLOSED BY THE ASSE SSEE IN THE ORIGINAL ASSESSMENT PROCEEDINGS. SIGNIFICANTLY, THE RE-ASSE SSMENT ORDER PASSED UNDER S.147 OF THE ACT ALSO DOES NOT PORTRAY ANY CO NCERN OF THE AO ON THIS ASPECT. OSTENSIBLY, IN THE ABSENCE OF AN EXPR ESS ALLEGATION AS A STARTING POINT, THE CONDITIONS STIPULATED UNDER FIR ST PROVISO UNDER S.147 OF THE ACT ARE NOT COMPLIED WITH. IN THIS EVENT, WHER E EMBARGO PLACED BY THE FIRST PROVISO COULD NOT BE OVERCOME, THE LEGITI MACY OF NOTICE ISSUED UNDER THE PROVISIONS OF SECTION 147 OF THE ACT IS V ITIATED. IT IS ALSO THE CATEGORICAL CASE OF ASSESSEE THAT TDS OBLIGATIONS U NDER S.194C OF THE ACT WERE DULY MET AND CHALLANS FOR PAYMENTS WERE ALSO P LACED BEFORE LOWER AUTHORITIES. THE ENTIRE REASSESSMENT PROCEEDINGS, T HUS, IS WITHOUT JURISDICTION AND LIABLE TO ANNULLED. THE CONSEQUEN T RE-ASSESSMENT ORDER IS ALSO THEREFORE LIABLE TO BE STRUCK DOWN AND CANCELL ED AS BAD IN LAW. WE DO SO ACCORDINGLY. 7.6 AT THIS STAGE, IT WILL ALSO BE RELEVANT TO TAKE NOTE OF THE OBJECTION ON BEHALF OF THE REVENUE THAT CHALLENGE TO JURISDIC TION UNDER S.147 OF THE ACT HAS BEEN RAISED FOR THE FIRST TIME BEFORE THE T RIBUNAL. IN THIS REGARD, WE OBSERVE THAT IT IS WELL SETTLED THAT THE QUESTIO N OF LACK OF JURISDICTION IS PURE QUESTION OF LAW CAPABLE OF BEING ADJUDGED O N BE BASIS OF MATERIAL ON RECORD. THERE IS NO ESTOPPEL AVAILABLE TO THE R EVENUE ON THE GROUND THAT ASSESSEE DID NOT RAISE THE QUESTION OF JURISDI CTION BEFORE THE LOWER ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 8 - AUTHORITIES. ESTOPPEL CANNOT GIVE JURISDICTION OVE R A MATTER WHICH IS OTHERWISE LACKING. IF AN AUTHORITY IS FOUND TO HAV E NO JURISDICTION TO INVOKE REOPENING OF A COMPLETED ASSESSMENT, THE CON SENT OR WAIVER CAN NEVER GIVE THE JURISDICTION TO THE AUTHORITY CONCER NED. SUCH VIEW HAS BEEN EXPRESSED J. S. PARKER 94 ITR 616 (GUJ) & P. V. DOSHI VS. CIT 113 ITR 22 (GUJ). 7.7 IN VIEW OF OUR ABOVE FINDINGS THAT THE ISSUANCE OF NOTICE UNDER S.147/148 OF THE ACT IS VOID AB INITIO AND ACCORDINGLY REASSESSMENT ORDER IS WITHOUT JURISDICTION AND THEREFORE ILLEGAL, WE D O NOT CONSIDER IT EXPEDIENT TO DEAL WITH THE MERITS OF THE FACTUAL AS PECTS OF THE CASE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . SD/- SD/- (MADHUMITA ROY) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER RANCHI: DATED 20/01/2020 TRUE COPY S. K. SINHA / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 / DR, ITAT, RANCHI 6. 278 9 / GUARD FILE. BY ORDER, SR. PRIVATE SECRETARY ITAT, AHMEDABAD THIS ORDER PRONOUNCED IN OPEN COURT ON 20/01/2020 IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 56/RAN/2018 ( ASSESSMENT YEAR : 2010-11) NAWEEN TRANSPORT COMPANY JARIDIH BAZAR, BERMO, BOKARO - 829114 / VS. ACIT CIRCLE -2, HAZARIBAGH ./ ./ PAN/GIR NO. : AADFN9613K ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI D. C. AGARWAL, ADVOCATE / RESPONDENT BY : SHRI INDERJEET SINGH, SR. CIT (DR) DATE OF HEARING 06/11/2019 !'# / DATE OF PRONOUNCEMENT 20/01/2020 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), HAZARIBAGH (CIT(A) IN SHORT), DATED 13.02.2018 ARI SING IN THE ASSESSMENT ORDER DATED 14.11.2017 PASSED BY THE ASSESSING OFFI CER (AO) UNDER S. 147/143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CO NCERNING AY 2010- 11. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER: 1. FOR THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX, (APPEALS) IS ILLEGAL, EXCESSIVE AND BEYOND THE FACT S AND CIRCUMSTANCES OF THE CASE AND AS SUCH IS NOT MAINTA INABLE. 2. FOR THAT ON PERUSAL OF THE ORDER, IT APPEARS THA T THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS DISALLOWED THE APPEAL ONLY ON THE BASIS THAT THE EVIDENCE PROVIDED WAS NE W ALTHOUGH HE HAS FAILED TO MENTION THAT THE EVIDENCES WERE ALREA DY PRODUCED BEFORE THE ASSESSING OFFICER AT THE TIME OF ORIGINA L ASSESSMENT DONE U/S 143(3) ON 23/01/2012. 3. FOR THAT THE LEARNED CIT (A) HAS COMPLETELY IGNO RED THE FACT THAT TDS WAS DULY DEDUCTED AND PAID AND PROOF OF THE SAM E WAS SUBMITTED WITH HIM. 4. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE MERITS OF THE CASE AND SHOUL D NOT HAVE FOCUSED ON TECHNICAL ISSUES. THE APPELLANT IS BEING PENALIZED FOR TECHNICAL ISSUES RATHER THAN ANY ESCAPEMENT OF INCO ME. 5. FOR THAT THE LEARNED CIT (A) OUGHT TO HAVE CONSI DERED THAT BEFORE THE SERVICE OF THE NOTICE THE ORDER WAS PASSED BY T HE LEARNED ASSESSING OFFICER AND HE OUGHT TO HAVE LOOKED INTO THE EVIDENCES PRODUCED BEFORE HIM BECAUSE THE LEARNED ASSESSING O FFICER HAD PASSED HIS ORDER IN HASTE. 6. FOR THAT THE REOPENING OF THE CASE U/S 14-TWAS B AD IN LAW ESPECIALLY IN VIEW OF THE FACT THAT THE ORIGINAL OR DER U/S 143(3) HAD ALREADY COVERED THE POINT OF TDS DEDUCTED AND D EPOSITED U/S 194C. 7. FOR THAT THE CIT (A) HAS ERRED IN NOT CONSIDERIN G THE FACT THAT COLUMN 27 (A) OF FORM 3CD OF THE AUDIT REPORT SPECI FICALLY MENTIONS THAT TDS PROVISION HAS BEEN PROPERLY COMPL IED. 8. FOR THAT THE CONFIRMATION OF ADDITION AT RS. 3,5 1,98,334/- IS ILLEGAL, AND BEYOND ALL CANON OF JUSTICE. 3. THE ASSESSEE IN THE INSTANT CASE HAS CHALLENGED THE ACTION OF THE AO BOTH ON MERITS AS WELL AS ON THE POINT OF UNLAWFUL USURPATION OF JURISDICTION UNDER S.147 OF THE ACT. 4. SINCE THE ASSESSEE HAS RAISED LEGAL QUESTION ON USURPATION OF JURISDICTION BY THE ASSESSING OFFICER (AO) TO REOPE N THE COMPLETED ASSESSMENT IN THE INSTANT CASE, IT WOULD BE PERTINE NT TO DEAL WITH THE AFORESAID QUESTION AT THE OUTSET. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 3 - 5. THE LEARNED AR FOR THE ASSESSEE AT THE OUTSET SU BMITTED THAT THE AO HAS WRONGLY ASSUMED THE JURISDICTION FOR MAKING REA SSESSMENT BY ISSUING NOTICE UNDER S.148 OF THE ACT WITHOUT AUTHORITY OF LAW. THE LD.AR SUBMITTED THAT THE INGREDIENTS OF SECTION 147/148 A RE NOT FULFILLED IN THE INSTANT CASE TO ENABLE THE AO TO EXERCISE JURISDICT ION AND TO PROCEED WITH RE-ASSESSMENT PROCEEDINGS. THE LEARNED AR FURTHER SUBMITTED THAT THE ASSESSMENT HAS BEEN REOPENED WITHOUT MEETING THE RE QUIREMENTS OF FIRST PROVISO TO SECTION 147 OF THE ACT. THE LEARNED AR NEXT SUBMITTED THAT THE ASSESSMENT FOR AY 2010-11 WAS EARLIER COMPLETED UND ER S.143(3) OF THE ACT VIDE ORDER DATED 23.01.2011 AND THE NOTICE FOR REASSESSMENT HAS BEEN ISSUED AFTER FOUR YEARS FROM THE END OF THE RELEVAN T AY 2010-11 ON 31.03.2017. THUS, THE AO WAS ENTITLED TO EXERCISE JURISDICTION UNDER S.147 OF THE ACT ONLY UPON FULFILLMENT OF ADDITIONA L CONDITIONS IMPOSED UNDER FIRST PROVISO TO SECTION 147 OF THE ACT. IT WAS ALLEGED THAT THE AO HAS ISSUED THE NOTICE UNDER S.147/148 OF THE ACT WI THOUT MEETING THESE REQUIREMENTS OF FIRST PROVISO TO SECTION 147 OF THE ACT. IT WAS FURTHER CONTENDED THAT THE ORIGINAL ASSESSMENT WAS MADE AFT ER PROPER ENQUIRY ON DEDUCTIBILITY OF TDS UNDER S.194C OF THE ACT AND OT HER PROVISIONS OF THE ACT AND THE ORIGINAL ASSESSMENT WAS PASSED AFTER PR OPER VERIFICATION OF TDS, RECONCILIATION OF ASSESSMENT AND PROOF REGARDI NG PAYMENT OF TAX/TDS CERTIFICATE IN RELATION TO VARIOUS EXPENSES . THE MATERIAL ALREADY PLACED BEFORE THE AO WAS LATER REVIEWED BY THE AUDI T PARTY/AO AND BASED ON SUCH REVIEW OF MATERIAL ALREADY AVAILABLE IN THE FILE OF THE AO, THE AO PROCEEDED TO INVOKE PROVISIONS OF SECTION 147 OF TH E ACT. THE LEARNED AR FOR THE ASSESSEE ALSO REFERRED TO THE REASONS RECOR DED AND CONTENDED THAT THERE IS NO ALLEGATION ON THE PART OF THE AO THAT T HE ASSESSEE HAS FAILED TO DISCLOSE ANY MATERIAL FACT FULLY AND TRULY AT THE T IME OF ORIGINAL ASSESSMENT AND THEREFORE THE ACTION OF REOPENING IS WITHOUT ANY LEGALLY SOUND BASIS FOR INVOKING THE PROVISIONS OF SECTION 147 OF THE ACT. IT WAS FURTHER ALLEGED THAT THE ACTION OF THE AO IS NOTHIN G BUT CHANGE OF OPINION ON THE SAME ISSUE BASED ON REVIEW OF MATERIAL ALREA DY PLACED ON RECORD WHICH IS NOT PERMISSIBLE IN LAW. IT WAS THUS ALLEG ED THAT THE ACT OF THE AO IN REOPENING THE COMPLETED ASSESSMENT AFTER FOUR YE ARS FROM THE END OF THE ASSESSMENT YEAR IS NEITHER SUSTAINABLE UNDER MA IN PROVISIONS OF ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 4 - SECTION 147 OF THE ACT NOR ON ACCOUNT OF STRINGENT EMBARGO PLACED UPON THE AO UNDER FIRST PROVISO THERETO. THE LEARNED AR ALSO SUBMITTED THAT IT IS NOT DISCERNIBLE FROM THE RECORD AS TO WHAT MATER IAL FACTS WERE NOT DISCLOSED FULLY AND TRULY WHICH HAS RESULTED IN ALL EGED ESCAPEMENT OF INCOME. IT WAS THUS CONTENDED THAT THE AO HAS WRON GFULLY ASSUMED THE JURISDICTION VESTED UNDER S.147 OF THE ACT WITHOUT MEETING LEGAL REQUIREMENTS. ON MERITS, THE LEARNED AR FOR THE AS SESSEE REFERRED TO THE WRITTEN SUBMISSIONS MADE BEFORE THE CIT(A) AS REPRO DUCED IN PARA 5 OF APPELLATE ORDER AND POINTED OUT THAT THE REQUIREMEN TS OF CHAPTER XVII TOWARDS VICARIOUS LIABILITY PLACED UPON THE ASSESSE E HAS BEEN DULY COMPLIED WITH AND THE PROVISIONS OF SECTION 40(A)(I A) OF THE ACT FOR DISALLOWANCE OF EXPENSES ARE NOT ATTRACTED. 6. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ACTION OF THE AO ON THE ISSUE OF VALIDITY OF USURPTION OF JURISDICTI ON UNDER S.147 OF THE ACT. IT WAS SUBMITTED THAT THE ASSESSEE HAS INCURR ED STAGGERING AMOUNT OF EXPENSES PEGGED AT RS.2,19,94,327/- ON ACCOUNT OF L OADING CHARGES/UNLOADING CHARGES AND LABOUR EXPENSES. THE ASSESSEE HAS NEITHER DEDUCTED TDS UNDER S.194C OF THE ACT ON SUCH PAYMEN TS NOR FILED ANY EVIDENCE AS OBLIGATED UNDER THE PROVISIONS CODIFIED IN CHAPTER XVII-B OF THE ACT. IN THE CIRCUMSTANCES, THE AO HAS CORRECTL Y REOPENED THE ASSESSMENT IN ACCORDANCE WITH LAW AFTER TAKING NECE SSARY APPROVALS OF THE SUPERIOR AUTHORITY CONTEMPLATED UNDER S.151 OF THE ACT. IT WAS THUS PLEADED THAT NO INTERFERENCE WITH THE ORDER OF THE CIT(A) IS CALLED FOR ON THE LEGAL GROUND RAISED BY THE ASSESSEE AT THIS BEL ATED STAGE AND NOT OBJECTED TO BEFORE THE CIT(A). 7. THE LEGAL ISSUE ON VALIDITY OF ASSUMPTION OF JU RISDICTION UNDER S.147/148 IS DEALT WITH HEREUNDER. 7.1. THE REASONS RECORDED UNDER S.148(2) GIVING CAU SE FOR ISSUANCE OF NOTICE UNDER S.148 IS PERTINENT TO DETERMINE THE JU RISDICTIONAL ISSUE. ACCORDINGLY, THE REASONS SO RECORDED BY THE AO FOR REOPENING THE COMPLETED ASSESSMENT IS REPRODUCED HEREUNDER:- ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 5 - IN THE P&L A/C, ASSESSEE HAS DEBITED EXPENSE OF R S.1,40,59,105/- UNDER THE HEAD LOADING CHARGES, RS.63,82,446/- UND ER THE HEAD UNLOADING CHARGES AND RS.15,52,776/- UNDER THE HEAD OF LABOUR EXPENSES. THE ASSESSEE HAS NEITHER DEDUCTED TDS U/ S 194C NOR FILED ANY DETAILS IN RESPECT OF THESE EXPENSE WHICH COMES TO RS.2,19,94,327/- 14059105 + 6382446 + 1552776], WHICH ATTRACTS THE P ROVISION OF SECTION 40A(IA) OF THE I.T. ACT, 1961. ALSO IN COL UMN 27(A) OF FORM NO.3CD THE AUDITOR HAS MENTIONED DEDUCTION OF TAX A T SOURCE REGARDING THE PAYMENT THEREOF TO THE CREDIT OF CENTRAL GOVT. UNDER PROVISION OF CHAPTER XVII-B BUT THE EVIDENCE WAS NOT AVAILABLE. FURTHER, ASSESSEE HAS DONE CONTRACTUAL WORK AT VIS A STEEL LTD., DVC, CTPS CHANDRAPURA AND CLAIMED RS.1,44,38,977/- UNDER THE HEAD TRANSPORTING CHARGES. THE ASSESSEE HAD MADE PAYME NT ABOVE RS.1 LACS BUT NOT FILED ANY DETAILS OF TDS MADE ON THESE PAYM ENTS. THEREFORE, I HAVE REASON TO BELIEVE THAT AN AMOUNT OF RS.3,64,33,304/- [2,19,94,327 + 14438977] ESCAPED I NCOME FOR WHICH ACTION AS PER 147/148 IS TO BE INITIATED. 7.2. BEFORE WE LOOK INTO THE REASONS SO RECORDED, I T WILL BE PERTINENT TO NOTICE THAT THE INSTANT CASE PERTAINS TO AY 2011-12 WHERE THE ASSESSMENT ORDER WAS EARLIER FRAMED UNDER S.143(3) VIDE ORDER DATED 23/01/2011. AS POINTED OUT ON BEHALF OF THE ASSESSEE AND CAN ALSO BE SEEN FROM THE ASSESSMENT ORDER ITSELF SPECIFIC INQUIRY ABOUT DEDU CTION OF TDS ON EXPENSES WAS MADE AND THE ASSESSMENT WAS FRAMED THE REUPON. THUS, AS PER THE ASSESSMENT ORDER ITSELF, AN INQUIRY WAS MAD E ON DEDUCTION OF TDS. THE ASSESSMENT WAS THEREAFTER FRAMED WHEREIN NO DIS ALLOWANCE WAS MADE IN CONSEQUENCE OF AFORESAID INQUIRY. 7.3. SUBSEQUENTLY, A NOTICE UNDER S.148 OF THE ACT HAS BEEN ISSUED AFTER APPROVAL OF THE PR.CIT UNDER S.151 OF THE ACT ON 30 .03.2017 MAKING OUT A CASE OF PURPORTED INFRINGEMENT OF SECTION 194C OF T HE ACT OSTENSIBLY ON REVIEW OF EXISTING RECORDS. IN CONSEQUENCE OF RELO OK AT RECORDS, THE AO APPEARS TO HAVE RECORDED REASON FOR RE-OPENING THE COMPLETED ASSESSMENT AFTER FOUR YEARS FROM THE END OF THE RELEVANT AY 20 10-11 AS NOTED IN EARLIER PARAS. 7.4 IN THE BACKGROUND OF AFORESAID FACTS, WE NOW TA KE NOTICE OF THE REASONS RECORDED AS REPRODUCED EARLIER. A BARE PERU SAL OF THE REASONS RECORDED SUGGESTS THAT THE AO HAS PROPELLED HIMSELF TO REOPEN THE ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 6 - ASSESSMENT FOR THE SIMPLE REASON THAT THE ASSESSEE IS FOUND TO HAVE NOT COMPLIED WITH THE PROVISIONS OF CHAPTER XVII-B OF T HE ACT INCLUDING SECTION 194C OF THE ACT THEREUNDER. WE DO NOT FIND ANY REFERENCE TO THE ASSESSMENT MADE UNDER S.143(3) OF THE ACT EARLIER I N THE REASONS SO RECORDED. WE ALSO DO NOT FIND ANY ALLEGATION IN TH E REASONS RECORDED AGAINST THE ASSESSEE THAT INCOME HAS ESCAPED ASSESS MENT OWING TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FA CTS FULLY AND TRULY AT THE TIME OF ASSESSMENT. IT IS NOT DISCERNIBLE FROM THE REASONS RECORDED AS TO HOW THE ENQUIRY MADE ON THE VERY ISSUE AT THE TIME OF THE ORIGINAL ASSESSMENT SUFFERED FROM ERROR AND WAS UNSUSTAINAB LE ON FACTS AND LAW. IT IS WELL SETTLED THAT MERE REVIEW OF EXISTING FAC TS BY THE SAME AUTHORITY LATER TO COME TO A DIFFERENT CONCLUSION AND THEREBY REOPENING THE COMPLETED ASSESSMENT IS NOT PERMISSIBLE IN LAW. NO TABLY, SECTION 194C R.W.S. 40(A)(IA) OF THE ACT IS NOT PLENARY IN NATUR E AND IS SUBJECT TO CERTAIN EXCEPTIONS AND ALSO HAVE BEEN MATTER OF LEGAL INTER PRETATION FROM TIME-TO- TIME. THEREFORE, WHERE THE ISSUE IN CONTROVERSY HA S BEEN SUBJECT MATTER OF SPECIFIC EXAMINATION AND ACCEPTANCE, A LOGICAL I NFERENCE WOULD BE THAT AN OPINION ON THE ISSUE WAS FRAMED BY STATUTORY AUT HORITY WHEREBY DISALLOWANCE UNDER S.40(A)(IA) OF THE ACT WAS NOT F OUND ATTRACTED. NEEDLESS TO SAY, REOPENING OF A COMPLETED ASSESSMEN T UNDER S.143(3) OF THE ACT IS NOT PERMISSIBLE ON A MERE CHANGE OF OPIN ION ON THE SAME ISSUE EXAMINED EARLIER. THEREFORE, IT IS DIFFICULT TO AG REE THAT THE AO HAS PASSED THE STRINGENT TEST LAID DOWN IN MAIN PROVISI ON AND FIRST PROVISO THERETO FOR CONFERMENT OF POWER UNDER S.147 OF THE ACT. SECTION 147 OF THE ACT IS A SUBSTANTIVE PROVISION GRANTING JURISDI CTION TO REOPEN COMPLETED ASSESSMENT AND THEREFORE CONDITIONS STIPU LATED THEREIN ARE STRICTLY REQUIRED TO BE ADHERED. SECTION 147 OF TH E ACT IS STRUCTURED WITH INBUILT SAFEGUARDS. THE AO IS NOT PERMITTED TO EXE RCISE THE POWER UNDER S.147 OF THE ACT ARBITRARILY OR MECHANICALLY. 7.5 IN THE INSTANT CASE, WE FIND THAT THE ACTION U NDER S.147 OF THE ACT WAS SOUGHT TO BE TAKEN IN RESPECT OF ASSESSMENT COMPLET ED UNDER S.143(3) OF THE ACT EARLIER AFTER EXPIRY OF FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR ALLEGING ESCAPEMENT OF INCOME FROM TAXATION. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 7 - THEREFORE, THE ACTION OF THE AO IS ALSO REQUIRED TO BE TESTED ON THE TOUCHSTONE OF EMBARGO PLACED BY THE FIRST PROVISO T O SECTION 147 OF THE ACT. THE FIRST PROVISO TO SECTION 147 OF THE ACT P LACES ADDITIONAL RESTRICTIONS ON THE AO FOR USURPTION OF JURISDICTIO N. AS PER THE PROVISO, THE ESCAPEMENT OF CHARGEABLE INCOME SHOULD BE BY RE ASONS OF THE FAILURE ON THE PART OF THE ASSESSEE TO INTER-ALIA DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT OF THE ASSE SSEE FOR THE RELEVANT ASSESSMENT YEAR. WE DO NOT FIND ANYTHING IN THE R EASONS RECORDED WHICH GOES TO DEMONSTRATE THAT THE ASSESSEE HAS FAILED TO DISCLOSE ANY MATERIAL FACT RELEVANT FOR ASSESSMENT IN THE ORIGINAL PROCEE DINGS. AS A MATTER OF FACT, THERE IS NO ALLEGATION OF THE AO ON THIS SCOR E IN THE REASONS RECORDED AS NOTED ABOVE. WE DO NOT FIND ANYTHING ON RECORD TO SHOW AS TO WHAT MATERIAL FACTS REMAINED TO BE DISCLOSED BY THE ASSE SSEE IN THE ORIGINAL ASSESSMENT PROCEEDINGS. SIGNIFICANTLY, THE RE-ASSE SSMENT ORDER PASSED UNDER S.147 OF THE ACT ALSO DOES NOT PORTRAY ANY CO NCERN OF THE AO ON THIS ASPECT. OSTENSIBLY, IN THE ABSENCE OF AN EXPR ESS ALLEGATION AS A STARTING POINT, THE CONDITIONS STIPULATED UNDER FIR ST PROVISO UNDER S.147 OF THE ACT ARE NOT COMPLIED WITH. IN THIS EVENT, WHER E EMBARGO PLACED BY THE FIRST PROVISO COULD NOT BE OVERCOME, THE LEGITI MACY OF NOTICE ISSUED UNDER THE PROVISIONS OF SECTION 147 OF THE ACT IS V ITIATED. IT IS ALSO THE CATEGORICAL CASE OF ASSESSEE THAT TDS OBLIGATIONS U NDER S.194C OF THE ACT WERE DULY MET AND CHALLANS FOR PAYMENTS WERE ALSO P LACED BEFORE LOWER AUTHORITIES. THE ENTIRE REASSESSMENT PROCEEDINGS, T HUS, IS WITHOUT JURISDICTION AND LIABLE TO ANNULLED. THE CONSEQUEN T RE-ASSESSMENT ORDER IS ALSO THEREFORE LIABLE TO BE STRUCK DOWN AND CANCELL ED AS BAD IN LAW. WE DO SO ACCORDINGLY. 7.6 AT THIS STAGE, IT WILL ALSO BE RELEVANT TO TAKE NOTE OF THE OBJECTION ON BEHALF OF THE REVENUE THAT CHALLENGE TO JURISDIC TION UNDER S.147 OF THE ACT HAS BEEN RAISED FOR THE FIRST TIME BEFORE THE T RIBUNAL. IN THIS REGARD, WE OBSERVE THAT IT IS WELL SETTLED THAT THE QUESTIO N OF LACK OF JURISDICTION IS PURE QUESTION OF LAW CAPABLE OF BEING ADJUDGED O N BE BASIS OF MATERIAL ON RECORD. THERE IS NO ESTOPPEL AVAILABLE TO THE R EVENUE ON THE GROUND THAT ASSESSEE DID NOT RAISE THE QUESTION OF JURISDI CTION BEFORE THE LOWER ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 8 - AUTHORITIES. ESTOPPEL CANNOT GIVE JURISDICTION OVE R A MATTER WHICH IS OTHERWISE LACKING. IF AN AUTHORITY IS FOUND TO HAV E NO JURISDICTION TO INVOKE REOPENING OF A COMPLETED ASSESSMENT, THE CON SENT OR WAIVER CAN NEVER GIVE THE JURISDICTION TO THE AUTHORITY CONCER NED. SUCH VIEW HAS BEEN EXPRESSED J. S. PARKER 94 ITR 616 (GUJ) & P. V. DOSHI VS. CIT 113 ITR 22 (GUJ). 7.7 IN VIEW OF OUR ABOVE FINDINGS THAT THE ISSUANCE OF NOTICE UNDER S.147/148 OF THE ACT IS VOID AB INITIO AND ACCORDINGLY REASSESSMENT ORDER IS WITHOUT JURISDICTION AND THEREFORE ILLEGAL, WE D O NOT CONSIDER IT EXPEDIENT TO DEAL WITH THE MERITS OF THE FACTUAL AS PECTS OF THE CASE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . SD/- SD/- (MADHUMITA ROY) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER RANCHI: DATED 20/01/2020 TRUE COPY S. K. SINHA / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 / DR, ITAT, RANCHI 6. 278 9 / GUARD FILE. BY ORDER, SR. PRIVATE SECRETARY ITAT, AHMEDABAD THIS ORDER PRONOUNCED IN OPEN COURT ON 20/01/2020 IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 56/RAN/2018 ( ASSESSMENT YEAR : 2010-11) NAWEEN TRANSPORT COMPANY JARIDIH BAZAR, BERMO, BOKARO - 829114 / VS. ACIT CIRCLE -2, HAZARIBAGH ./ ./ PAN/GIR NO. : AADFN9613K ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI D. C. AGARWAL, ADVOCATE / RESPONDENT BY : SHRI INDERJEET SINGH, SR. CIT (DR) DATE OF HEARING 06/11/2019 !'# / DATE OF PRONOUNCEMENT 20/01/2020 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), HAZARIBAGH (CIT(A) IN SHORT), DATED 13.02.2018 ARI SING IN THE ASSESSMENT ORDER DATED 14.11.2017 PASSED BY THE ASSESSING OFFI CER (AO) UNDER S. 147/143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CO NCERNING AY 2010- 11. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER: 1. FOR THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX, (APPEALS) IS ILLEGAL, EXCESSIVE AND BEYOND THE FACT S AND CIRCUMSTANCES OF THE CASE AND AS SUCH IS NOT MAINTA INABLE. 2. FOR THAT ON PERUSAL OF THE ORDER, IT APPEARS THA T THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS DISALLOWED THE APPEAL ONLY ON THE BASIS THAT THE EVIDENCE PROVIDED WAS NE W ALTHOUGH HE HAS FAILED TO MENTION THAT THE EVIDENCES WERE ALREA DY PRODUCED BEFORE THE ASSESSING OFFICER AT THE TIME OF ORIGINA L ASSESSMENT DONE U/S 143(3) ON 23/01/2012. 3. FOR THAT THE LEARNED CIT (A) HAS COMPLETELY IGNO RED THE FACT THAT TDS WAS DULY DEDUCTED AND PAID AND PROOF OF THE SAM E WAS SUBMITTED WITH HIM. 4. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE MERITS OF THE CASE AND SHOUL D NOT HAVE FOCUSED ON TECHNICAL ISSUES. THE APPELLANT IS BEING PENALIZED FOR TECHNICAL ISSUES RATHER THAN ANY ESCAPEMENT OF INCO ME. 5. FOR THAT THE LEARNED CIT (A) OUGHT TO HAVE CONSI DERED THAT BEFORE THE SERVICE OF THE NOTICE THE ORDER WAS PASSED BY T HE LEARNED ASSESSING OFFICER AND HE OUGHT TO HAVE LOOKED INTO THE EVIDENCES PRODUCED BEFORE HIM BECAUSE THE LEARNED ASSESSING O FFICER HAD PASSED HIS ORDER IN HASTE. 6. FOR THAT THE REOPENING OF THE CASE U/S 14-TWAS B AD IN LAW ESPECIALLY IN VIEW OF THE FACT THAT THE ORIGINAL OR DER U/S 143(3) HAD ALREADY COVERED THE POINT OF TDS DEDUCTED AND D EPOSITED U/S 194C. 7. FOR THAT THE CIT (A) HAS ERRED IN NOT CONSIDERIN G THE FACT THAT COLUMN 27 (A) OF FORM 3CD OF THE AUDIT REPORT SPECI FICALLY MENTIONS THAT TDS PROVISION HAS BEEN PROPERLY COMPL IED. 8. FOR THAT THE CONFIRMATION OF ADDITION AT RS. 3,5 1,98,334/- IS ILLEGAL, AND BEYOND ALL CANON OF JUSTICE. 3. THE ASSESSEE IN THE INSTANT CASE HAS CHALLENGED THE ACTION OF THE AO BOTH ON MERITS AS WELL AS ON THE POINT OF UNLAWFUL USURPATION OF JURISDICTION UNDER S.147 OF THE ACT. 4. SINCE THE ASSESSEE HAS RAISED LEGAL QUESTION ON USURPATION OF JURISDICTION BY THE ASSESSING OFFICER (AO) TO REOPE N THE COMPLETED ASSESSMENT IN THE INSTANT CASE, IT WOULD BE PERTINE NT TO DEAL WITH THE AFORESAID QUESTION AT THE OUTSET. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 3 - 5. THE LEARNED AR FOR THE ASSESSEE AT THE OUTSET SU BMITTED THAT THE AO HAS WRONGLY ASSUMED THE JURISDICTION FOR MAKING REA SSESSMENT BY ISSUING NOTICE UNDER S.148 OF THE ACT WITHOUT AUTHORITY OF LAW. THE LD.AR SUBMITTED THAT THE INGREDIENTS OF SECTION 147/148 A RE NOT FULFILLED IN THE INSTANT CASE TO ENABLE THE AO TO EXERCISE JURISDICT ION AND TO PROCEED WITH RE-ASSESSMENT PROCEEDINGS. THE LEARNED AR FURTHER SUBMITTED THAT THE ASSESSMENT HAS BEEN REOPENED WITHOUT MEETING THE RE QUIREMENTS OF FIRST PROVISO TO SECTION 147 OF THE ACT. THE LEARNED AR NEXT SUBMITTED THAT THE ASSESSMENT FOR AY 2010-11 WAS EARLIER COMPLETED UND ER S.143(3) OF THE ACT VIDE ORDER DATED 23.01.2011 AND THE NOTICE FOR REASSESSMENT HAS BEEN ISSUED AFTER FOUR YEARS FROM THE END OF THE RELEVAN T AY 2010-11 ON 31.03.2017. THUS, THE AO WAS ENTITLED TO EXERCISE JURISDICTION UNDER S.147 OF THE ACT ONLY UPON FULFILLMENT OF ADDITIONA L CONDITIONS IMPOSED UNDER FIRST PROVISO TO SECTION 147 OF THE ACT. IT WAS ALLEGED THAT THE AO HAS ISSUED THE NOTICE UNDER S.147/148 OF THE ACT WI THOUT MEETING THESE REQUIREMENTS OF FIRST PROVISO TO SECTION 147 OF THE ACT. IT WAS FURTHER CONTENDED THAT THE ORIGINAL ASSESSMENT WAS MADE AFT ER PROPER ENQUIRY ON DEDUCTIBILITY OF TDS UNDER S.194C OF THE ACT AND OT HER PROVISIONS OF THE ACT AND THE ORIGINAL ASSESSMENT WAS PASSED AFTER PR OPER VERIFICATION OF TDS, RECONCILIATION OF ASSESSMENT AND PROOF REGARDI NG PAYMENT OF TAX/TDS CERTIFICATE IN RELATION TO VARIOUS EXPENSES . THE MATERIAL ALREADY PLACED BEFORE THE AO WAS LATER REVIEWED BY THE AUDI T PARTY/AO AND BASED ON SUCH REVIEW OF MATERIAL ALREADY AVAILABLE IN THE FILE OF THE AO, THE AO PROCEEDED TO INVOKE PROVISIONS OF SECTION 147 OF TH E ACT. THE LEARNED AR FOR THE ASSESSEE ALSO REFERRED TO THE REASONS RECOR DED AND CONTENDED THAT THERE IS NO ALLEGATION ON THE PART OF THE AO THAT T HE ASSESSEE HAS FAILED TO DISCLOSE ANY MATERIAL FACT FULLY AND TRULY AT THE T IME OF ORIGINAL ASSESSMENT AND THEREFORE THE ACTION OF REOPENING IS WITHOUT ANY LEGALLY SOUND BASIS FOR INVOKING THE PROVISIONS OF SECTION 147 OF THE ACT. IT WAS FURTHER ALLEGED THAT THE ACTION OF THE AO IS NOTHIN G BUT CHANGE OF OPINION ON THE SAME ISSUE BASED ON REVIEW OF MATERIAL ALREA DY PLACED ON RECORD WHICH IS NOT PERMISSIBLE IN LAW. IT WAS THUS ALLEG ED THAT THE ACT OF THE AO IN REOPENING THE COMPLETED ASSESSMENT AFTER FOUR YE ARS FROM THE END OF THE ASSESSMENT YEAR IS NEITHER SUSTAINABLE UNDER MA IN PROVISIONS OF ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 4 - SECTION 147 OF THE ACT NOR ON ACCOUNT OF STRINGENT EMBARGO PLACED UPON THE AO UNDER FIRST PROVISO THERETO. THE LEARNED AR ALSO SUBMITTED THAT IT IS NOT DISCERNIBLE FROM THE RECORD AS TO WHAT MATER IAL FACTS WERE NOT DISCLOSED FULLY AND TRULY WHICH HAS RESULTED IN ALL EGED ESCAPEMENT OF INCOME. IT WAS THUS CONTENDED THAT THE AO HAS WRON GFULLY ASSUMED THE JURISDICTION VESTED UNDER S.147 OF THE ACT WITHOUT MEETING LEGAL REQUIREMENTS. ON MERITS, THE LEARNED AR FOR THE AS SESSEE REFERRED TO THE WRITTEN SUBMISSIONS MADE BEFORE THE CIT(A) AS REPRO DUCED IN PARA 5 OF APPELLATE ORDER AND POINTED OUT THAT THE REQUIREMEN TS OF CHAPTER XVII TOWARDS VICARIOUS LIABILITY PLACED UPON THE ASSESSE E HAS BEEN DULY COMPLIED WITH AND THE PROVISIONS OF SECTION 40(A)(I A) OF THE ACT FOR DISALLOWANCE OF EXPENSES ARE NOT ATTRACTED. 6. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ACTION OF THE AO ON THE ISSUE OF VALIDITY OF USURPTION OF JURISDICTI ON UNDER S.147 OF THE ACT. IT WAS SUBMITTED THAT THE ASSESSEE HAS INCURR ED STAGGERING AMOUNT OF EXPENSES PEGGED AT RS.2,19,94,327/- ON ACCOUNT OF L OADING CHARGES/UNLOADING CHARGES AND LABOUR EXPENSES. THE ASSESSEE HAS NEITHER DEDUCTED TDS UNDER S.194C OF THE ACT ON SUCH PAYMEN TS NOR FILED ANY EVIDENCE AS OBLIGATED UNDER THE PROVISIONS CODIFIED IN CHAPTER XVII-B OF THE ACT. IN THE CIRCUMSTANCES, THE AO HAS CORRECTL Y REOPENED THE ASSESSMENT IN ACCORDANCE WITH LAW AFTER TAKING NECE SSARY APPROVALS OF THE SUPERIOR AUTHORITY CONTEMPLATED UNDER S.151 OF THE ACT. IT WAS THUS PLEADED THAT NO INTERFERENCE WITH THE ORDER OF THE CIT(A) IS CALLED FOR ON THE LEGAL GROUND RAISED BY THE ASSESSEE AT THIS BEL ATED STAGE AND NOT OBJECTED TO BEFORE THE CIT(A). 7. THE LEGAL ISSUE ON VALIDITY OF ASSUMPTION OF JU RISDICTION UNDER S.147/148 IS DEALT WITH HEREUNDER. 7.1. THE REASONS RECORDED UNDER S.148(2) GIVING CAU SE FOR ISSUANCE OF NOTICE UNDER S.148 IS PERTINENT TO DETERMINE THE JU RISDICTIONAL ISSUE. ACCORDINGLY, THE REASONS SO RECORDED BY THE AO FOR REOPENING THE COMPLETED ASSESSMENT IS REPRODUCED HEREUNDER:- ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 5 - IN THE P&L A/C, ASSESSEE HAS DEBITED EXPENSE OF R S.1,40,59,105/- UNDER THE HEAD LOADING CHARGES, RS.63,82,446/- UND ER THE HEAD UNLOADING CHARGES AND RS.15,52,776/- UNDER THE HEAD OF LABOUR EXPENSES. THE ASSESSEE HAS NEITHER DEDUCTED TDS U/ S 194C NOR FILED ANY DETAILS IN RESPECT OF THESE EXPENSE WHICH COMES TO RS.2,19,94,327/- 14059105 + 6382446 + 1552776], WHICH ATTRACTS THE P ROVISION OF SECTION 40A(IA) OF THE I.T. ACT, 1961. ALSO IN COL UMN 27(A) OF FORM NO.3CD THE AUDITOR HAS MENTIONED DEDUCTION OF TAX A T SOURCE REGARDING THE PAYMENT THEREOF TO THE CREDIT OF CENTRAL GOVT. UNDER PROVISION OF CHAPTER XVII-B BUT THE EVIDENCE WAS NOT AVAILABLE. FURTHER, ASSESSEE HAS DONE CONTRACTUAL WORK AT VIS A STEEL LTD., DVC, CTPS CHANDRAPURA AND CLAIMED RS.1,44,38,977/- UNDER THE HEAD TRANSPORTING CHARGES. THE ASSESSEE HAD MADE PAYME NT ABOVE RS.1 LACS BUT NOT FILED ANY DETAILS OF TDS MADE ON THESE PAYM ENTS. THEREFORE, I HAVE REASON TO BELIEVE THAT AN AMOUNT OF RS.3,64,33,304/- [2,19,94,327 + 14438977] ESCAPED I NCOME FOR WHICH ACTION AS PER 147/148 IS TO BE INITIATED. 7.2. BEFORE WE LOOK INTO THE REASONS SO RECORDED, I T WILL BE PERTINENT TO NOTICE THAT THE INSTANT CASE PERTAINS TO AY 2011-12 WHERE THE ASSESSMENT ORDER WAS EARLIER FRAMED UNDER S.143(3) VIDE ORDER DATED 23/01/2011. AS POINTED OUT ON BEHALF OF THE ASSESSEE AND CAN ALSO BE SEEN FROM THE ASSESSMENT ORDER ITSELF SPECIFIC INQUIRY ABOUT DEDU CTION OF TDS ON EXPENSES WAS MADE AND THE ASSESSMENT WAS FRAMED THE REUPON. THUS, AS PER THE ASSESSMENT ORDER ITSELF, AN INQUIRY WAS MAD E ON DEDUCTION OF TDS. THE ASSESSMENT WAS THEREAFTER FRAMED WHEREIN NO DIS ALLOWANCE WAS MADE IN CONSEQUENCE OF AFORESAID INQUIRY. 7.3. SUBSEQUENTLY, A NOTICE UNDER S.148 OF THE ACT HAS BEEN ISSUED AFTER APPROVAL OF THE PR.CIT UNDER S.151 OF THE ACT ON 30 .03.2017 MAKING OUT A CASE OF PURPORTED INFRINGEMENT OF SECTION 194C OF T HE ACT OSTENSIBLY ON REVIEW OF EXISTING RECORDS. IN CONSEQUENCE OF RELO OK AT RECORDS, THE AO APPEARS TO HAVE RECORDED REASON FOR RE-OPENING THE COMPLETED ASSESSMENT AFTER FOUR YEARS FROM THE END OF THE RELEVANT AY 20 10-11 AS NOTED IN EARLIER PARAS. 7.4 IN THE BACKGROUND OF AFORESAID FACTS, WE NOW TA KE NOTICE OF THE REASONS RECORDED AS REPRODUCED EARLIER. A BARE PERU SAL OF THE REASONS RECORDED SUGGESTS THAT THE AO HAS PROPELLED HIMSELF TO REOPEN THE ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 6 - ASSESSMENT FOR THE SIMPLE REASON THAT THE ASSESSEE IS FOUND TO HAVE NOT COMPLIED WITH THE PROVISIONS OF CHAPTER XVII-B OF T HE ACT INCLUDING SECTION 194C OF THE ACT THEREUNDER. WE DO NOT FIND ANY REFERENCE TO THE ASSESSMENT MADE UNDER S.143(3) OF THE ACT EARLIER I N THE REASONS SO RECORDED. WE ALSO DO NOT FIND ANY ALLEGATION IN TH E REASONS RECORDED AGAINST THE ASSESSEE THAT INCOME HAS ESCAPED ASSESS MENT OWING TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FA CTS FULLY AND TRULY AT THE TIME OF ASSESSMENT. IT IS NOT DISCERNIBLE FROM THE REASONS RECORDED AS TO HOW THE ENQUIRY MADE ON THE VERY ISSUE AT THE TIME OF THE ORIGINAL ASSESSMENT SUFFERED FROM ERROR AND WAS UNSUSTAINAB LE ON FACTS AND LAW. IT IS WELL SETTLED THAT MERE REVIEW OF EXISTING FAC TS BY THE SAME AUTHORITY LATER TO COME TO A DIFFERENT CONCLUSION AND THEREBY REOPENING THE COMPLETED ASSESSMENT IS NOT PERMISSIBLE IN LAW. NO TABLY, SECTION 194C R.W.S. 40(A)(IA) OF THE ACT IS NOT PLENARY IN NATUR E AND IS SUBJECT TO CERTAIN EXCEPTIONS AND ALSO HAVE BEEN MATTER OF LEGAL INTER PRETATION FROM TIME-TO- TIME. THEREFORE, WHERE THE ISSUE IN CONTROVERSY HA S BEEN SUBJECT MATTER OF SPECIFIC EXAMINATION AND ACCEPTANCE, A LOGICAL I NFERENCE WOULD BE THAT AN OPINION ON THE ISSUE WAS FRAMED BY STATUTORY AUT HORITY WHEREBY DISALLOWANCE UNDER S.40(A)(IA) OF THE ACT WAS NOT F OUND ATTRACTED. NEEDLESS TO SAY, REOPENING OF A COMPLETED ASSESSMEN T UNDER S.143(3) OF THE ACT IS NOT PERMISSIBLE ON A MERE CHANGE OF OPIN ION ON THE SAME ISSUE EXAMINED EARLIER. THEREFORE, IT IS DIFFICULT TO AG REE THAT THE AO HAS PASSED THE STRINGENT TEST LAID DOWN IN MAIN PROVISI ON AND FIRST PROVISO THERETO FOR CONFERMENT OF POWER UNDER S.147 OF THE ACT. SECTION 147 OF THE ACT IS A SUBSTANTIVE PROVISION GRANTING JURISDI CTION TO REOPEN COMPLETED ASSESSMENT AND THEREFORE CONDITIONS STIPU LATED THEREIN ARE STRICTLY REQUIRED TO BE ADHERED. SECTION 147 OF TH E ACT IS STRUCTURED WITH INBUILT SAFEGUARDS. THE AO IS NOT PERMITTED TO EXE RCISE THE POWER UNDER S.147 OF THE ACT ARBITRARILY OR MECHANICALLY. 7.5 IN THE INSTANT CASE, WE FIND THAT THE ACTION U NDER S.147 OF THE ACT WAS SOUGHT TO BE TAKEN IN RESPECT OF ASSESSMENT COMPLET ED UNDER S.143(3) OF THE ACT EARLIER AFTER EXPIRY OF FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR ALLEGING ESCAPEMENT OF INCOME FROM TAXATION. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 7 - THEREFORE, THE ACTION OF THE AO IS ALSO REQUIRED TO BE TESTED ON THE TOUCHSTONE OF EMBARGO PLACED BY THE FIRST PROVISO T O SECTION 147 OF THE ACT. THE FIRST PROVISO TO SECTION 147 OF THE ACT P LACES ADDITIONAL RESTRICTIONS ON THE AO FOR USURPTION OF JURISDICTIO N. AS PER THE PROVISO, THE ESCAPEMENT OF CHARGEABLE INCOME SHOULD BE BY RE ASONS OF THE FAILURE ON THE PART OF THE ASSESSEE TO INTER-ALIA DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT OF THE ASSE SSEE FOR THE RELEVANT ASSESSMENT YEAR. WE DO NOT FIND ANYTHING IN THE R EASONS RECORDED WHICH GOES TO DEMONSTRATE THAT THE ASSESSEE HAS FAILED TO DISCLOSE ANY MATERIAL FACT RELEVANT FOR ASSESSMENT IN THE ORIGINAL PROCEE DINGS. AS A MATTER OF FACT, THERE IS NO ALLEGATION OF THE AO ON THIS SCOR E IN THE REASONS RECORDED AS NOTED ABOVE. WE DO NOT FIND ANYTHING ON RECORD TO SHOW AS TO WHAT MATERIAL FACTS REMAINED TO BE DISCLOSED BY THE ASSE SSEE IN THE ORIGINAL ASSESSMENT PROCEEDINGS. SIGNIFICANTLY, THE RE-ASSE SSMENT ORDER PASSED UNDER S.147 OF THE ACT ALSO DOES NOT PORTRAY ANY CO NCERN OF THE AO ON THIS ASPECT. OSTENSIBLY, IN THE ABSENCE OF AN EXPR ESS ALLEGATION AS A STARTING POINT, THE CONDITIONS STIPULATED UNDER FIR ST PROVISO UNDER S.147 OF THE ACT ARE NOT COMPLIED WITH. IN THIS EVENT, WHER E EMBARGO PLACED BY THE FIRST PROVISO COULD NOT BE OVERCOME, THE LEGITI MACY OF NOTICE ISSUED UNDER THE PROVISIONS OF SECTION 147 OF THE ACT IS V ITIATED. IT IS ALSO THE CATEGORICAL CASE OF ASSESSEE THAT TDS OBLIGATIONS U NDER S.194C OF THE ACT WERE DULY MET AND CHALLANS FOR PAYMENTS WERE ALSO P LACED BEFORE LOWER AUTHORITIES. THE ENTIRE REASSESSMENT PROCEEDINGS, T HUS, IS WITHOUT JURISDICTION AND LIABLE TO ANNULLED. THE CONSEQUEN T RE-ASSESSMENT ORDER IS ALSO THEREFORE LIABLE TO BE STRUCK DOWN AND CANCELL ED AS BAD IN LAW. WE DO SO ACCORDINGLY. 7.6 AT THIS STAGE, IT WILL ALSO BE RELEVANT TO TAKE NOTE OF THE OBJECTION ON BEHALF OF THE REVENUE THAT CHALLENGE TO JURISDIC TION UNDER S.147 OF THE ACT HAS BEEN RAISED FOR THE FIRST TIME BEFORE THE T RIBUNAL. IN THIS REGARD, WE OBSERVE THAT IT IS WELL SETTLED THAT THE QUESTIO N OF LACK OF JURISDICTION IS PURE QUESTION OF LAW CAPABLE OF BEING ADJUDGED O N BE BASIS OF MATERIAL ON RECORD. THERE IS NO ESTOPPEL AVAILABLE TO THE R EVENUE ON THE GROUND THAT ASSESSEE DID NOT RAISE THE QUESTION OF JURISDI CTION BEFORE THE LOWER ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 8 - AUTHORITIES. ESTOPPEL CANNOT GIVE JURISDICTION OVE R A MATTER WHICH IS OTHERWISE LACKING. IF AN AUTHORITY IS FOUND TO HAV E NO JURISDICTION TO INVOKE REOPENING OF A COMPLETED ASSESSMENT, THE CON SENT OR WAIVER CAN NEVER GIVE THE JURISDICTION TO THE AUTHORITY CONCER NED. SUCH VIEW HAS BEEN EXPRESSED J. S. PARKER 94 ITR 616 (GUJ) & P. V. DOSHI VS. CIT 113 ITR 22 (GUJ). 7.7 IN VIEW OF OUR ABOVE FINDINGS THAT THE ISSUANCE OF NOTICE UNDER S.147/148 OF THE ACT IS VOID AB INITIO AND ACCORDINGLY REASSESSMENT ORDER IS WITHOUT JURISDICTION AND THEREFORE ILLEGAL, WE D O NOT CONSIDER IT EXPEDIENT TO DEAL WITH THE MERITS OF THE FACTUAL AS PECTS OF THE CASE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . SD/- SD/- (MADHUMITA ROY) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER RANCHI: DATED 20/01/2020 TRUE COPY S. K. SINHA / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 / DR, ITAT, RANCHI 6. 278 9 / GUARD FILE. BY ORDER, SR. PRIVATE SECRETARY ITAT, AHMEDABAD THIS ORDER PRONOUNCED IN OPEN COURT ON 20/01/2020 IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 56/RAN/2018 ( ASSESSMENT YEAR : 2010-11) NAWEEN TRANSPORT COMPANY JARIDIH BAZAR, BERMO, BOKARO - 829114 / VS. ACIT CIRCLE -2, HAZARIBAGH ./ ./ PAN/GIR NO. : AADFN9613K ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI D. C. AGARWAL, ADVOCATE / RESPONDENT BY : SHRI INDERJEET SINGH, SR. CIT (DR) DATE OF HEARING 06/11/2019 !'# / DATE OF PRONOUNCEMENT 20/01/2020 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), HAZARIBAGH (CIT(A) IN SHORT), DATED 13.02.2018 ARI SING IN THE ASSESSMENT ORDER DATED 14.11.2017 PASSED BY THE ASSESSING OFFI CER (AO) UNDER S. 147/143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CO NCERNING AY 2010- 11. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER: 1. FOR THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX, (APPEALS) IS ILLEGAL, EXCESSIVE AND BEYOND THE FACT S AND CIRCUMSTANCES OF THE CASE AND AS SUCH IS NOT MAINTA INABLE. 2. FOR THAT ON PERUSAL OF THE ORDER, IT APPEARS THA T THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS DISALLOWED THE APPEAL ONLY ON THE BASIS THAT THE EVIDENCE PROVIDED WAS NE W ALTHOUGH HE HAS FAILED TO MENTION THAT THE EVIDENCES WERE ALREA DY PRODUCED BEFORE THE ASSESSING OFFICER AT THE TIME OF ORIGINA L ASSESSMENT DONE U/S 143(3) ON 23/01/2012. 3. FOR THAT THE LEARNED CIT (A) HAS COMPLETELY IGNO RED THE FACT THAT TDS WAS DULY DEDUCTED AND PAID AND PROOF OF THE SAM E WAS SUBMITTED WITH HIM. 4. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE MERITS OF THE CASE AND SHOUL D NOT HAVE FOCUSED ON TECHNICAL ISSUES. THE APPELLANT IS BEING PENALIZED FOR TECHNICAL ISSUES RATHER THAN ANY ESCAPEMENT OF INCO ME. 5. FOR THAT THE LEARNED CIT (A) OUGHT TO HAVE CONSI DERED THAT BEFORE THE SERVICE OF THE NOTICE THE ORDER WAS PASSED BY T HE LEARNED ASSESSING OFFICER AND HE OUGHT TO HAVE LOOKED INTO THE EVIDENCES PRODUCED BEFORE HIM BECAUSE THE LEARNED ASSESSING O FFICER HAD PASSED HIS ORDER IN HASTE. 6. FOR THAT THE REOPENING OF THE CASE U/S 14-TWAS B AD IN LAW ESPECIALLY IN VIEW OF THE FACT THAT THE ORIGINAL OR DER U/S 143(3) HAD ALREADY COVERED THE POINT OF TDS DEDUCTED AND D EPOSITED U/S 194C. 7. FOR THAT THE CIT (A) HAS ERRED IN NOT CONSIDERIN G THE FACT THAT COLUMN 27 (A) OF FORM 3CD OF THE AUDIT REPORT SPECI FICALLY MENTIONS THAT TDS PROVISION HAS BEEN PROPERLY COMPL IED. 8. FOR THAT THE CONFIRMATION OF ADDITION AT RS. 3,5 1,98,334/- IS ILLEGAL, AND BEYOND ALL CANON OF JUSTICE. 3. THE ASSESSEE IN THE INSTANT CASE HAS CHALLENGED THE ACTION OF THE AO BOTH ON MERITS AS WELL AS ON THE POINT OF UNLAWFUL USURPATION OF JURISDICTION UNDER S.147 OF THE ACT. 4. SINCE THE ASSESSEE HAS RAISED LEGAL QUESTION ON USURPATION OF JURISDICTION BY THE ASSESSING OFFICER (AO) TO REOPE N THE COMPLETED ASSESSMENT IN THE INSTANT CASE, IT WOULD BE PERTINE NT TO DEAL WITH THE AFORESAID QUESTION AT THE OUTSET. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 3 - 5. THE LEARNED AR FOR THE ASSESSEE AT THE OUTSET SU BMITTED THAT THE AO HAS WRONGLY ASSUMED THE JURISDICTION FOR MAKING REA SSESSMENT BY ISSUING NOTICE UNDER S.148 OF THE ACT WITHOUT AUTHORITY OF LAW. THE LD.AR SUBMITTED THAT THE INGREDIENTS OF SECTION 147/148 A RE NOT FULFILLED IN THE INSTANT CASE TO ENABLE THE AO TO EXERCISE JURISDICT ION AND TO PROCEED WITH RE-ASSESSMENT PROCEEDINGS. THE LEARNED AR FURTHER SUBMITTED THAT THE ASSESSMENT HAS BEEN REOPENED WITHOUT MEETING THE RE QUIREMENTS OF FIRST PROVISO TO SECTION 147 OF THE ACT. THE LEARNED AR NEXT SUBMITTED THAT THE ASSESSMENT FOR AY 2010-11 WAS EARLIER COMPLETED UND ER S.143(3) OF THE ACT VIDE ORDER DATED 23.01.2011 AND THE NOTICE FOR REASSESSMENT HAS BEEN ISSUED AFTER FOUR YEARS FROM THE END OF THE RELEVAN T AY 2010-11 ON 31.03.2017. THUS, THE AO WAS ENTITLED TO EXERCISE JURISDICTION UNDER S.147 OF THE ACT ONLY UPON FULFILLMENT OF ADDITIONA L CONDITIONS IMPOSED UNDER FIRST PROVISO TO SECTION 147 OF THE ACT. IT WAS ALLEGED THAT THE AO HAS ISSUED THE NOTICE UNDER S.147/148 OF THE ACT WI THOUT MEETING THESE REQUIREMENTS OF FIRST PROVISO TO SECTION 147 OF THE ACT. IT WAS FURTHER CONTENDED THAT THE ORIGINAL ASSESSMENT WAS MADE AFT ER PROPER ENQUIRY ON DEDUCTIBILITY OF TDS UNDER S.194C OF THE ACT AND OT HER PROVISIONS OF THE ACT AND THE ORIGINAL ASSESSMENT WAS PASSED AFTER PR OPER VERIFICATION OF TDS, RECONCILIATION OF ASSESSMENT AND PROOF REGARDI NG PAYMENT OF TAX/TDS CERTIFICATE IN RELATION TO VARIOUS EXPENSES . THE MATERIAL ALREADY PLACED BEFORE THE AO WAS LATER REVIEWED BY THE AUDI T PARTY/AO AND BASED ON SUCH REVIEW OF MATERIAL ALREADY AVAILABLE IN THE FILE OF THE AO, THE AO PROCEEDED TO INVOKE PROVISIONS OF SECTION 147 OF TH E ACT. THE LEARNED AR FOR THE ASSESSEE ALSO REFERRED TO THE REASONS RECOR DED AND CONTENDED THAT THERE IS NO ALLEGATION ON THE PART OF THE AO THAT T HE ASSESSEE HAS FAILED TO DISCLOSE ANY MATERIAL FACT FULLY AND TRULY AT THE T IME OF ORIGINAL ASSESSMENT AND THEREFORE THE ACTION OF REOPENING IS WITHOUT ANY LEGALLY SOUND BASIS FOR INVOKING THE PROVISIONS OF SECTION 147 OF THE ACT. IT WAS FURTHER ALLEGED THAT THE ACTION OF THE AO IS NOTHIN G BUT CHANGE OF OPINION ON THE SAME ISSUE BASED ON REVIEW OF MATERIAL ALREA DY PLACED ON RECORD WHICH IS NOT PERMISSIBLE IN LAW. IT WAS THUS ALLEG ED THAT THE ACT OF THE AO IN REOPENING THE COMPLETED ASSESSMENT AFTER FOUR YE ARS FROM THE END OF THE ASSESSMENT YEAR IS NEITHER SUSTAINABLE UNDER MA IN PROVISIONS OF ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 4 - SECTION 147 OF THE ACT NOR ON ACCOUNT OF STRINGENT EMBARGO PLACED UPON THE AO UNDER FIRST PROVISO THERETO. THE LEARNED AR ALSO SUBMITTED THAT IT IS NOT DISCERNIBLE FROM THE RECORD AS TO WHAT MATER IAL FACTS WERE NOT DISCLOSED FULLY AND TRULY WHICH HAS RESULTED IN ALL EGED ESCAPEMENT OF INCOME. IT WAS THUS CONTENDED THAT THE AO HAS WRON GFULLY ASSUMED THE JURISDICTION VESTED UNDER S.147 OF THE ACT WITHOUT MEETING LEGAL REQUIREMENTS. ON MERITS, THE LEARNED AR FOR THE AS SESSEE REFERRED TO THE WRITTEN SUBMISSIONS MADE BEFORE THE CIT(A) AS REPRO DUCED IN PARA 5 OF APPELLATE ORDER AND POINTED OUT THAT THE REQUIREMEN TS OF CHAPTER XVII TOWARDS VICARIOUS LIABILITY PLACED UPON THE ASSESSE E HAS BEEN DULY COMPLIED WITH AND THE PROVISIONS OF SECTION 40(A)(I A) OF THE ACT FOR DISALLOWANCE OF EXPENSES ARE NOT ATTRACTED. 6. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ACTION OF THE AO ON THE ISSUE OF VALIDITY OF USURPTION OF JURISDICTI ON UNDER S.147 OF THE ACT. IT WAS SUBMITTED THAT THE ASSESSEE HAS INCURR ED STAGGERING AMOUNT OF EXPENSES PEGGED AT RS.2,19,94,327/- ON ACCOUNT OF L OADING CHARGES/UNLOADING CHARGES AND LABOUR EXPENSES. THE ASSESSEE HAS NEITHER DEDUCTED TDS UNDER S.194C OF THE ACT ON SUCH PAYMEN TS NOR FILED ANY EVIDENCE AS OBLIGATED UNDER THE PROVISIONS CODIFIED IN CHAPTER XVII-B OF THE ACT. IN THE CIRCUMSTANCES, THE AO HAS CORRECTL Y REOPENED THE ASSESSMENT IN ACCORDANCE WITH LAW AFTER TAKING NECE SSARY APPROVALS OF THE SUPERIOR AUTHORITY CONTEMPLATED UNDER S.151 OF THE ACT. IT WAS THUS PLEADED THAT NO INTERFERENCE WITH THE ORDER OF THE CIT(A) IS CALLED FOR ON THE LEGAL GROUND RAISED BY THE ASSESSEE AT THIS BEL ATED STAGE AND NOT OBJECTED TO BEFORE THE CIT(A). 7. THE LEGAL ISSUE ON VALIDITY OF ASSUMPTION OF JU RISDICTION UNDER S.147/148 IS DEALT WITH HEREUNDER. 7.1. THE REASONS RECORDED UNDER S.148(2) GIVING CAU SE FOR ISSUANCE OF NOTICE UNDER S.148 IS PERTINENT TO DETERMINE THE JU RISDICTIONAL ISSUE. ACCORDINGLY, THE REASONS SO RECORDED BY THE AO FOR REOPENING THE COMPLETED ASSESSMENT IS REPRODUCED HEREUNDER:- ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 5 - IN THE P&L A/C, ASSESSEE HAS DEBITED EXPENSE OF R S.1,40,59,105/- UNDER THE HEAD LOADING CHARGES, RS.63,82,446/- UND ER THE HEAD UNLOADING CHARGES AND RS.15,52,776/- UNDER THE HEAD OF LABOUR EXPENSES. THE ASSESSEE HAS NEITHER DEDUCTED TDS U/ S 194C NOR FILED ANY DETAILS IN RESPECT OF THESE EXPENSE WHICH COMES TO RS.2,19,94,327/- 14059105 + 6382446 + 1552776], WHICH ATTRACTS THE P ROVISION OF SECTION 40A(IA) OF THE I.T. ACT, 1961. ALSO IN COL UMN 27(A) OF FORM NO.3CD THE AUDITOR HAS MENTIONED DEDUCTION OF TAX A T SOURCE REGARDING THE PAYMENT THEREOF TO THE CREDIT OF CENTRAL GOVT. UNDER PROVISION OF CHAPTER XVII-B BUT THE EVIDENCE WAS NOT AVAILABLE. FURTHER, ASSESSEE HAS DONE CONTRACTUAL WORK AT VIS A STEEL LTD., DVC, CTPS CHANDRAPURA AND CLAIMED RS.1,44,38,977/- UNDER THE HEAD TRANSPORTING CHARGES. THE ASSESSEE HAD MADE PAYME NT ABOVE RS.1 LACS BUT NOT FILED ANY DETAILS OF TDS MADE ON THESE PAYM ENTS. THEREFORE, I HAVE REASON TO BELIEVE THAT AN AMOUNT OF RS.3,64,33,304/- [2,19,94,327 + 14438977] ESCAPED I NCOME FOR WHICH ACTION AS PER 147/148 IS TO BE INITIATED. 7.2. BEFORE WE LOOK INTO THE REASONS SO RECORDED, I T WILL BE PERTINENT TO NOTICE THAT THE INSTANT CASE PERTAINS TO AY 2011-12 WHERE THE ASSESSMENT ORDER WAS EARLIER FRAMED UNDER S.143(3) VIDE ORDER DATED 23/01/2011. AS POINTED OUT ON BEHALF OF THE ASSESSEE AND CAN ALSO BE SEEN FROM THE ASSESSMENT ORDER ITSELF SPECIFIC INQUIRY ABOUT DEDU CTION OF TDS ON EXPENSES WAS MADE AND THE ASSESSMENT WAS FRAMED THE REUPON. THUS, AS PER THE ASSESSMENT ORDER ITSELF, AN INQUIRY WAS MAD E ON DEDUCTION OF TDS. THE ASSESSMENT WAS THEREAFTER FRAMED WHEREIN NO DIS ALLOWANCE WAS MADE IN CONSEQUENCE OF AFORESAID INQUIRY. 7.3. SUBSEQUENTLY, A NOTICE UNDER S.148 OF THE ACT HAS BEEN ISSUED AFTER APPROVAL OF THE PR.CIT UNDER S.151 OF THE ACT ON 30 .03.2017 MAKING OUT A CASE OF PURPORTED INFRINGEMENT OF SECTION 194C OF T HE ACT OSTENSIBLY ON REVIEW OF EXISTING RECORDS. IN CONSEQUENCE OF RELO OK AT RECORDS, THE AO APPEARS TO HAVE RECORDED REASON FOR RE-OPENING THE COMPLETED ASSESSMENT AFTER FOUR YEARS FROM THE END OF THE RELEVANT AY 20 10-11 AS NOTED IN EARLIER PARAS. 7.4 IN THE BACKGROUND OF AFORESAID FACTS, WE NOW TA KE NOTICE OF THE REASONS RECORDED AS REPRODUCED EARLIER. A BARE PERU SAL OF THE REASONS RECORDED SUGGESTS THAT THE AO HAS PROPELLED HIMSELF TO REOPEN THE ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 6 - ASSESSMENT FOR THE SIMPLE REASON THAT THE ASSESSEE IS FOUND TO HAVE NOT COMPLIED WITH THE PROVISIONS OF CHAPTER XVII-B OF T HE ACT INCLUDING SECTION 194C OF THE ACT THEREUNDER. WE DO NOT FIND ANY REFERENCE TO THE ASSESSMENT MADE UNDER S.143(3) OF THE ACT EARLIER I N THE REASONS SO RECORDED. WE ALSO DO NOT FIND ANY ALLEGATION IN TH E REASONS RECORDED AGAINST THE ASSESSEE THAT INCOME HAS ESCAPED ASSESS MENT OWING TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FA CTS FULLY AND TRULY AT THE TIME OF ASSESSMENT. IT IS NOT DISCERNIBLE FROM THE REASONS RECORDED AS TO HOW THE ENQUIRY MADE ON THE VERY ISSUE AT THE TIME OF THE ORIGINAL ASSESSMENT SUFFERED FROM ERROR AND WAS UNSUSTAINAB LE ON FACTS AND LAW. IT IS WELL SETTLED THAT MERE REVIEW OF EXISTING FAC TS BY THE SAME AUTHORITY LATER TO COME TO A DIFFERENT CONCLUSION AND THEREBY REOPENING THE COMPLETED ASSESSMENT IS NOT PERMISSIBLE IN LAW. NO TABLY, SECTION 194C R.W.S. 40(A)(IA) OF THE ACT IS NOT PLENARY IN NATUR E AND IS SUBJECT TO CERTAIN EXCEPTIONS AND ALSO HAVE BEEN MATTER OF LEGAL INTER PRETATION FROM TIME-TO- TIME. THEREFORE, WHERE THE ISSUE IN CONTROVERSY HA S BEEN SUBJECT MATTER OF SPECIFIC EXAMINATION AND ACCEPTANCE, A LOGICAL I NFERENCE WOULD BE THAT AN OPINION ON THE ISSUE WAS FRAMED BY STATUTORY AUT HORITY WHEREBY DISALLOWANCE UNDER S.40(A)(IA) OF THE ACT WAS NOT F OUND ATTRACTED. NEEDLESS TO SAY, REOPENING OF A COMPLETED ASSESSMEN T UNDER S.143(3) OF THE ACT IS NOT PERMISSIBLE ON A MERE CHANGE OF OPIN ION ON THE SAME ISSUE EXAMINED EARLIER. THEREFORE, IT IS DIFFICULT TO AG REE THAT THE AO HAS PASSED THE STRINGENT TEST LAID DOWN IN MAIN PROVISI ON AND FIRST PROVISO THERETO FOR CONFERMENT OF POWER UNDER S.147 OF THE ACT. SECTION 147 OF THE ACT IS A SUBSTANTIVE PROVISION GRANTING JURISDI CTION TO REOPEN COMPLETED ASSESSMENT AND THEREFORE CONDITIONS STIPU LATED THEREIN ARE STRICTLY REQUIRED TO BE ADHERED. SECTION 147 OF TH E ACT IS STRUCTURED WITH INBUILT SAFEGUARDS. THE AO IS NOT PERMITTED TO EXE RCISE THE POWER UNDER S.147 OF THE ACT ARBITRARILY OR MECHANICALLY. 7.5 IN THE INSTANT CASE, WE FIND THAT THE ACTION U NDER S.147 OF THE ACT WAS SOUGHT TO BE TAKEN IN RESPECT OF ASSESSMENT COMPLET ED UNDER S.143(3) OF THE ACT EARLIER AFTER EXPIRY OF FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR ALLEGING ESCAPEMENT OF INCOME FROM TAXATION. ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 7 - THEREFORE, THE ACTION OF THE AO IS ALSO REQUIRED TO BE TESTED ON THE TOUCHSTONE OF EMBARGO PLACED BY THE FIRST PROVISO T O SECTION 147 OF THE ACT. THE FIRST PROVISO TO SECTION 147 OF THE ACT P LACES ADDITIONAL RESTRICTIONS ON THE AO FOR USURPTION OF JURISDICTIO N. AS PER THE PROVISO, THE ESCAPEMENT OF CHARGEABLE INCOME SHOULD BE BY RE ASONS OF THE FAILURE ON THE PART OF THE ASSESSEE TO INTER-ALIA DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT OF THE ASSE SSEE FOR THE RELEVANT ASSESSMENT YEAR. WE DO NOT FIND ANYTHING IN THE R EASONS RECORDED WHICH GOES TO DEMONSTRATE THAT THE ASSESSEE HAS FAILED TO DISCLOSE ANY MATERIAL FACT RELEVANT FOR ASSESSMENT IN THE ORIGINAL PROCEE DINGS. AS A MATTER OF FACT, THERE IS NO ALLEGATION OF THE AO ON THIS SCOR E IN THE REASONS RECORDED AS NOTED ABOVE. WE DO NOT FIND ANYTHING ON RECORD TO SHOW AS TO WHAT MATERIAL FACTS REMAINED TO BE DISCLOSED BY THE ASSE SSEE IN THE ORIGINAL ASSESSMENT PROCEEDINGS. SIGNIFICANTLY, THE RE-ASSE SSMENT ORDER PASSED UNDER S.147 OF THE ACT ALSO DOES NOT PORTRAY ANY CO NCERN OF THE AO ON THIS ASPECT. OSTENSIBLY, IN THE ABSENCE OF AN EXPR ESS ALLEGATION AS A STARTING POINT, THE CONDITIONS STIPULATED UNDER FIR ST PROVISO UNDER S.147 OF THE ACT ARE NOT COMPLIED WITH. IN THIS EVENT, WHER E EMBARGO PLACED BY THE FIRST PROVISO COULD NOT BE OVERCOME, THE LEGITI MACY OF NOTICE ISSUED UNDER THE PROVISIONS OF SECTION 147 OF THE ACT IS V ITIATED. IT IS ALSO THE CATEGORICAL CASE OF ASSESSEE THAT TDS OBLIGATIONS U NDER S.194C OF THE ACT WERE DULY MET AND CHALLANS FOR PAYMENTS WERE ALSO P LACED BEFORE LOWER AUTHORITIES. THE ENTIRE REASSESSMENT PROCEEDINGS, T HUS, IS WITHOUT JURISDICTION AND LIABLE TO ANNULLED. THE CONSEQUEN T RE-ASSESSMENT ORDER IS ALSO THEREFORE LIABLE TO BE STRUCK DOWN AND CANCELL ED AS BAD IN LAW. WE DO SO ACCORDINGLY. 7.6 AT THIS STAGE, IT WILL ALSO BE RELEVANT TO TAKE NOTE OF THE OBJECTION ON BEHALF OF THE REVENUE THAT CHALLENGE TO JURISDIC TION UNDER S.147 OF THE ACT HAS BEEN RAISED FOR THE FIRST TIME BEFORE THE T RIBUNAL. IN THIS REGARD, WE OBSERVE THAT IT IS WELL SETTLED THAT THE QUESTIO N OF LACK OF JURISDICTION IS PURE QUESTION OF LAW CAPABLE OF BEING ADJUDGED O N BE BASIS OF MATERIAL ON RECORD. THERE IS NO ESTOPPEL AVAILABLE TO THE R EVENUE ON THE GROUND THAT ASSESSEE DID NOT RAISE THE QUESTION OF JURISDI CTION BEFORE THE LOWER ITA NO. 56/RAN/18 (NAWEEN TRANSPORT COMPANY VS. ACIT] AY 2010-11 - 8 - AUTHORITIES. ESTOPPEL CANNOT GIVE JURISDICTION OVE R A MATTER WHICH IS OTHERWISE LACKING. IF AN AUTHORITY IS FOUND TO HAV E NO JURISDICTION TO INVOKE REOPENING OF A COMPLETED ASSESSMENT, THE CON SENT OR WAIVER CAN NEVER GIVE THE JURISDICTION TO THE AUTHORITY CONCER NED. SUCH VIEW HAS BEEN EXPRESSED J. S. PARKER 94 ITR 616 (GUJ) & P. V. DOSHI VS. CIT 113 ITR 22 (GUJ). 7.7 IN VIEW OF OUR ABOVE FINDINGS THAT THE ISSUANCE OF NOTICE UNDER S.147/148 OF THE ACT IS VOID AB INITIO AND ACCORDINGLY REASSESSMENT ORDER IS WITHOUT JURISDICTION AND THEREFORE ILLEGAL, WE D O NOT CONSIDER IT EXPEDIENT TO DEAL WITH THE MERITS OF THE FACTUAL AS PECTS OF THE CASE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . SD/- SD/- (MADHUMITA ROY) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER RANCHI: DATED 20/01/2020 TRUE COPY S. K. SINHA / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 / DR, ITAT, RANCHI 6. 278 9 / GUARD FILE. BY ORDER, SR. PRIVATE SECRETARY ITAT, AHMEDABAD THIS ORDER PRONOUNCED IN OPEN COURT ON 20/01/2020