ACIT, Bangalore V. M/s. Deepak Cables (I) Ltd., Bangalore

ITA 634/BANG/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0672 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-10-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 13-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K R PRADEEP
• Assessee Lawyers: M V SHESHACHALA
• Keywords: Depreciation; Source of fund; Difference of opinion; Assessment record; Revised return; Reason to believe; Change of opinion; TDS
• Section: 271(1)(c); 143(3); 133A; 153A; 234B; 139(5); 80IA; 143(2); 139(4); 147; 131; 148; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE B BENCH, BANGALORE BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI A. MOHAN ALANKAMONY, AM ITA NOS.634, 688 TO 693(BANG.)/2008 (ASST. YEARS : 1998-99,1999-2000, 2001-02, & 2002-0 3 TO 2005-06 ) THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2(1), BANGALORE APPELLANT VS DEEPAK CABLES (I) LTD., NO.313, EMBASSY CENTRE, 3RD FLOOR, CRESCENT ROAD, BANGALORE RESPONDENT REVENUE BY : SHRI M.V.SHESHACHALA APPELLANT BY : SHRI K.R.PRADEEP O R D E R PER BENCH ALL THESE APPEALS BY REVENUE PERTAIN TO SAME ASSES SEE ON COMMON ISSUES, SO ALL THESE APPEALS ARE BEING DISPO SED OF BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVIT Y. 2. THE REVENUE IN AY: 1998-99 HAS RAISED THE FOLLOW ING GROUNDS: I. THAT THE CIT(A) ERRED IN HOLDING THE ASSESSMENT CONCLUDED U/S 143(3) R.W.S.147, IS BASED ON REVISED RETURN OF INCOME FILED BY THE ASSESSEE AS AGAINST THE FACT THAT THE ASSESSMENT WAS CONCLUDED ON THE RETURN FILED IN RESPONSE TO NOTICE U/S 148. ITA NOS.634, 688 TO 693(B)/08 2 II. THE CIT(A) ERRED IN RELYING ON THE DECISION OF ITAT IN ITA NO.116(BNG)/2006 DATED 21-09-2007 FOR THE ASSESSMENT YEAR 2001-02, WHEREAS THE ORDER OF ITAT ITSELF IS UNDER APPEAL BEFORE HIGH COURT OF KARNATAKA ON THE ISSUE. THE DECLARED INCOME AS PER REVISED RETURN CANNOT BE DISPUTED BY THE ASSESSEE, WHEN THE RETURN WAS FILED VOLUNTARILY. III. THE CIT(A) IGNORED THE FACT THAT THE ASSESSEE NEVER PRODUCED ANY EVIDENCE WITH RESPECT TO ITS CLAIM OF DEDUCTION U/S 80IA. THE SURVEY PROCEEDINGS REVEALED THAT THE ASSESSEE IS NOT ELIGIBLE FOR THE SAID DEDUCTION IN RESPECT OF TUMKUR UNIT. IT IS ONLY, THEN THE ASSESSEE FILED A REVISED RETURN OF INCOME WITHDRAWING ITS CLAIM IN RESPECT OF TUMKUR UNIT. IV. THE CIT(A) ERRED IN IGNORING THE FACT THAT THE REVISED RETURN FILED WAS DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON AN ORIGINAL RETURN. ONLY A COMMITTED FACT BY THE ASSESSEE HAS BEEN TAKEN INTO ACCOUNT FOR DISALLOWING THE DEDUCTION U/S 80IA ON TUMKUR UNIT. 3. THE ASSESSEE IS A PUBLIC LIMITED COMPANY CARRYIN G ON THE BUSINESS OF MANUFACTURING AND SUPPLYING ACSR CONDUC TORS FOR TRANSMISSION/DISTRIBUTION OF POWER LINES UNDER NAME AND STYLE DEEPAK CABLES (I) LTD., A SURVEY U/S 133A WAS CONDUCTED ON 09-03-2004, A STATEMENT U/S 131 WAS RECORDED AND THE ASSESSEE WAS CONFRONTED REGARDING THE CLAIM MADE U/S 80IA AT A RELEVANT POI NT OF TIME. ITA NOS.634, 688 TO 693(B)/08 3 ACCORDING TO ASSESSING OFFICER, ASSESSEE HAS ADMITT ED THAT THE DEDUCTION U/S 80IA WAS WRONGLY CLAIMED. SUBSEQUENT LY, THE ASSESSEE VOLUNTARILY FILED RETURN OF INCOME FOR THE ASSESSME NT YEAR 1998-99 ON 22-03-2004 DECLARING THE TOTAL INCOME OF RS.1,69,7 9,582/-. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEES INCO ME FOR THE ASSESSMENT YEAR 1998-99 WAS UNDER ASSESSED TO THE E XTENT OF THE ADDITIONAL INCOME DISCLOSED IN THE RETURN FILE ON 2 2-03-2004. NOTICE U/S 148 WAS ISSUED ON 08-04-2004. IN RESPONSE TO N OTICE ISSUED U/S 148, THE ASSESSEE IN ITS LETTER DATED 23-062004 S TATED THAT THE RETURN FILED ON 22-03-2004 MAY BE TREATED AS FILED IN RESP ONSE TO NOTICE U/S 148 AND AFTER NOTICE U/S 143(2) WAS ISSUED AND THE ASSESSMENT WAS COMPLETED. A REVISED RETURN WITHDRAWING THE CLAIM U/S 80IA WERE NOT ONLY FILED FOR THE ASSESSMENT YEAR 1998-99, BUT ALS O FOR SUBSEQUENT YEARS UPTO ASSESSMENT YEAR 2003-04. THE FACT THAT THE ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S 80IA WAS ACCEPTED BY THE ASSESSEE IN THE ASSESSMENT YEAR 2001-02 OBSERVED BY ASSESSING OFFIC ER. IN ASSESSMENT YEAR 2001-02, PENALTY PROCEEDINGS U/S 271(1)(C) WER E ALSO INITIATED BY THE DEPARTMENT. THEREAFTER, THE ASSESSEE MADE VARI OUS ARGUMENTS AND SUBMITTED THAT THE RETURN FILED ON 22-03-2004 FOR THE ASSESSMENT YEAR 1998-99 SHOULD BE IGNORED. ITA NOS.634, 688 TO 693(B)/08 4 4. THE ASSESSEE OPPOSED FIRSTLY THE RE-OPENING OF T HE ASSESSMENT AND SECONDLY THE CLAIM U/S 80IA WITH REGARD TO PROF ITS OF TUMKUR UNIT. WITH REGARDS TO RE-OPENING OF THE CASE AND SUBMITTE D AS UNDER: A) NOTHING INCRIMINATING WAS FOUND DURING THE SURVEY WHICH MAY WARRANT RE-OPENING OF ASSESSMENT. B) AS PER THE SUPREME COURT DECISION IN 107 ITR 195, THE ASSESSEE CLAIM U/S 80IA IS PERFECTLY IN ORDER. C) THE DEPARTMENT SHOULD NOT HAVE ACTED UPON THE STATEMENT RECORDED FROM THE EXECUTIVE DIRECTOR OF THE COMPANY DURING THE COURSE OF THE SURVEY. D) THE RETURN FILED ON 22-03-2004 WAS NOT A VALID RETURN AND HENCE NO ACTION CAN BE INITIATED O N THE BASIS OF AN INVALID RETURN. E) AS THE ASSESSMENT WAS RE-OPENED BEYOND THE PERIOD OF FOUR YEARS, THE ONUS IS ON THE DEPARTMENT TO PROVE THAT THE ASSESSEE WAS GUILTY OF NOT DISCLOSING THE MATERIAL FACTS IN THE EARLIER ASSESSMENT PROCEEDINGS. 5. IN RESPONSE TO NOTICE U/S 148, THE ASSESSEE IN ITS LETTER DATED 23-06-2004 ASKED TO TREAT THE SAID RETURN FILED ON 22-03-2004 AS THE RETURN FILED IN RESPONSE TO THE ABOVE REFERRED NOTI CE. THE ASSESSING OFFICER TOOK NOTICE OF THE RETURN THOUGH, IT MAY NO T BE A RETURN U/S 139(10) OR 139(4) OR OTHERWISE A VALID RETURN. THE ASSESSEE CHALLENGED THE VALIDITY OF THE RETURN THAT IT HAD BEEN FILED B EYOND THE PRESCRIBED TIME LIMIT. THE RETURN FILED BEYOND THE PRESCRIBED TIME LIMIT IS AN INVALID RETURN BECAUSE IT WAS DONE AFTER THE EXPIRY OF FOUR YEARS. THE ASSESSING OFFICER SHOULD HAVE POINTED OUT THAT THE ASSESSEE DID NOT ITA NOS.634, 688 TO 693(B)/08 5 DISCLOSE FULLY AND TRULY ALL THE MATERIALS FACTS DU RING THE EARLIER ASSESSMENT PROCEEDINGS. 6. IN THE ORIGINAL ORDER U/S 143(3), THE ASSESSEE CLAIMED DEDUCTION U/S 80IA AMOUNTING TO RS.36,95,331/-. THE ASSESSING OFFICER ACCEPTED THE CLAIM OF THE ASSESSEE ON THE B ASIS OF SUBMISSION MADE BY THE ASSESSEE. THE ASSESSING OFFICER IN ORIG INAL ASSESSMENT RAISED CERTAIN QUERIES REGARDING COMPUTATION OF DED UCTION U/S 80-IA AND HELD THAT THE MANUFACTURING TURNOVER AT TUMKUR UNIT WAS ELIGIBLE FOR DEDUCTION U/S 80-IA. HOWEVER, THE TURNOVER PER TAINING TO THE JOB WORK CARRIED OUT AT OTHER PLACES WAS NOT FOUND ELIG IBLE FOR DEDUCTION U/S 80-IA. THE VERY BASIC PRINCIPLE AS TO WHETHER A NEW INDUSTRIAL UNDERTAKING HAD BEEN AT ALL SET UP BY THE ASSESSEE DURING THE YEAR RELEVANT TO PREVIOUS YEAR UNDER CONSIDERATION WAS A CCEPTED BY THE ASSESSING OFFICER ON THE BASIS OF THE AVERMENT THAT SUBSTANTIAL EXPANSION TOOK PLACE AND THE OLD UNIT ITSELF WOULD AMOUNT TO A NEW INDUSTRIAL UNDERTAKING. 7. ACCORDING TO ORDER SHEET ENTRIES OF THE ORIGINA L ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED FOR VARIO US DETAILS ON 08-10- 98 AS BELOW ON 08-10-1999. A) TURNOVER DETAILS B) CONSULTANCY DETAILS C) CLARIFICATION OF RULE6(1) ITA NOS.634, 688 TO 693(B)/08 6 D) MANAGERIAL REMUNERATION E) PURCHASE FROM RELATED PARTIES F) SOURCE OF FUNDS TO INCREASE SHARE CAPITAL G) SECURED AND UNSECURED LOANS ETC. H) INTEREST NETTING DETAILS I) BANK CHARGES, COMMISSION DETAILS ETC. 8. THE ASSESSEE WAS FURTHER ASKED TO FURNISH DETAI LS OF INVOICES OF MACHINERY PURCHASED, MANAGERIAL REMUNERATION, CORRE SPONDENCE FOR SALE COMMISSION ETC. ON 26-02-2001. BUT ON THE BASI S OF SURVEY ON 09- 03-2004, THE ASSESSING OFFICER OBSERVED THAT THE AS SESSEE HAD ONLY ONE MANUFACTURING UNIT AT TUMKUR AND THE UNIT WAS 2 0 YEARS OLD AND HAD UNDERGONE EXPANSION MODERNIZATION ETC. FROM TIM E TOT TIME. DURING THE FINANCIAL YEAR 1996-97 AND 1997-98, THE ASSESSEE HAD UNDERTAKEN A SUBSTANTIAL EXPANSION/MODERNIZATION PR OJECT FOR INCREASING THE MANUFACTURING CAPACITY OF TUMKUR UNI T. THIS WAS STATED TO BE ADMITTED BY THE EXECUTIVE DIRECTOR SRI K.VENKATESHWARA RAO IN HIS STATEMENT U/S 131. IN THIS REGARD ASSESS EE SUBMITTED THAT THE ASSESSEE THE CLAIM U/S 80-IA WAS EXAMINED BY TH E ASSESSING OFFICER AND AFTER THE DUE SCRUTINY HE DID NOT DISPU TE THE FACT THAT SUBSTANTIAL INVESTMENT AMOUNTED TO SETTING UP OF A NEW INDUSTRIAL UNDERTAKING. HOWEVER, THE ASSESSING OFFICER OBSERVE D THAT THE ASSESSEES STAND IS AFTER THOUGHT AND THERE IS NOTH ING ON RECORD TO ITA NOS.634, 688 TO 693(B)/08 7 SHOW THAT ASSESSEE HAD SUBSTANTIAL INVESTMENT AT TH E TIME OF ORIGINAL ASSESSMENT. ACCORDINGLY, RE-OPENING WAS HELD JUSTIF IED BY THE ASSESSING OFFICER. 9. REGARDING CLAIM OF DEDUCTION U/S 80-IA, THE ASS ESSING OFFICER OBSERVED THAT THE RETURN FILED ON 22-03-2004 DOES N OT CLAIM THE DEDUCTION U/S 80-IA AND THE SAME WAS TREATED AS RET URN FILED N RESPONSE TO NOTICE U/S 148. THE INCOME WAS ASSESSED AS PER THE SAID RETURN OF INCOME OF RS.1,69,79,582/-AND NO DEDUCTIO N ALLOWED U/S 80- IA. IN THE ORIGINAL RETURN FILED FOR THE ASSESSMEN T YEAR 1998-99, THE ASSESSEE CLAIMED DEDUCTION U/S 80-IA. AS DISCUSSED EARLIER THE ASSESSEE SUBMITTED BEFORE THE ASSESSING OFFICER THA T IT HAD SET UP A NEW INDUSTRIAL UNDERTAKING DURING THE RELEVANT PERI OD. BUT THE ASSESSING OFFICER OBSERVED THAT MERE EXPANSION OF T HE EXISTING UNIT CANNOT BE CONSIDERED A NEW INDUSTRIAL UNDERTAKING. ACCORDINGLY, THE CLAIM WAS NOT ACCEPTED BY ASSESSING OFFICER ON THIS ACCOUNT SIMILAR VIEW HAS TAKEN BY ASSESSING OFFICER IN 1999-2000, 2 001-02, 2003 TO 2005-06, BUT IN LATER YEARS AFTER CONDUCTING SEARCH U/S 132 AND AFTER ISSUING NOTICE U/S 153A OF THE ACT. THE SAME HAS BE EN OPPOSED BEFORE THE FIRST APPELLATE AUTHORITY 10. IN APPEAL, VARIOUS CONTENTIONS WERE RAISED ON BEHALF OF ASSESSEE AND CIT(A) AFTER TAKING INTO CONSIDERATION VARIOUS FACTS AND CIRCUMSTANCES AND MAINLY RELYING ON THE DECISION OF ITAT IN ITA ITA NOS.634, 688 TO 693(B)/08 8 NO.116(B)/06 FOR THE ASSESSMENT YEAR 2001-02 DATED 21-09-2007, DECIDED THE ISSUE IN FAVOUR OF ASSESSEE IN ALL THRE E YEARS BY OBSERVING AS UNDER; ITA NO.116(BNG.)/06 (AY: 2001-02) DATE OF ORDER21 -09-2007 4. NOW THE SHORT QUESTION WHICH FALLS FOR DETERMIN ATION BY THE TRIBUNAL IS WHETHER THE REVISED RETURN FILED BY THE ASSESSEE IS BEYOND LIMITATION PRESCRIBED UNDER LAW. IF SUCH A RETURN IS TIME BARRED, THE ORDER OF ASSESSMENT FRAMED ON THE BASIS OF REVISED RETURN IS INVALID OR NOT. 5. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIALS ON RECORD. THE UNDISPUTED FACT IN THE PRESENT CASE IS THAT THE ORIGINAL RETURN WAS FILED ON 31.10.2001 CLAIMING DEDUCTION U /S. 80-IA OF THE ACT IN RESPECT OF THE TUMKUR UNIT. THEREAFTER, A SURVE Y WAS CONDUCTED IN THE BUSINESS PREMISES OF TUMKUR UNIT AND SOME STATE MENTS OF OFFICIALS OF THE ASSESSEE COMPANY WERE RECORDED. THEREAFTER, THE ASSESSEE FURNISHED THE REVISED RETURN ON 26.3.2004. FOR BETT ER APPRECIATION OF THE ISSUE, WE ARE QUOTING BELOW THE PROVISIONS OF S ECTION 139(5) OF THE ACT AVAILABLE AT THE RELEVANT POINT OF TIME: (5) IF ANY PERSON, HAVING FURNISHED A RETURN UNDE R SUB- SECTION (1), OR IN PURSUANCE OF A NOTICE ISSUED UND ER SUB- SECTION (1) OF SECTION 142, DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THEREIN, HE MAY FURNISH A REVISED R ETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION O F THE ASSESSMENT, WHICHEVER IS EARLIER. 6. IT IS CLEAR FROM THE AFORESAID PROVISION THAT A REVISED RETURN CAN BE FILED AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION O F ASSESSMENT, WHICHEVER IS EARLIER. THE RELEVANT ASSESSMENT YEAR IN THE PRESENT CASE IS 2001-02, THEREFORE, ONE YEAR EXPIRES IN 2003; WH EREAS THE ITA NOS.634, 688 TO 693(B)/08 9 ASSESSMENT ORDER IS DATED 31.3.2004. HENCE, ACCORD ING TO THE PROVISIONS OF SECTION 139(5), THE REVISED RETURN SH OULD HAVE BEEN FILED BEFORE 2003; WHEREAS THE SAME WAS FILED ON 26.3.200 4. HENCE, THERE IS NO DISPUTE THAT THE REVISED RETURN IS TIME BARRED. LAW IS VERY CLEAR ON THIS ISSUE THAT A REVISED RETURN HAS TO BE A VALID REVISED RETURN ON THE BASIS OF WHICH AN ASSESSMENT CAN BE FRAMED BY THE A O. SINCE THE REVISED ITSELF IS A BELATED RETURN, IT CANNOT BE SA ID TO BE A VALID REVISED RETURN. THEREFORE, IN OUR OPINION, THE ORDER OF AS SESSMENT PASSED BY THE AO ON THE BASIS OF THIS RETURN IS A NULLITY. 7. THE LD. DR RAISED AN OBJECTION THAT IT IS NOT CO RRECT TO HOLD THAT THE ASSESSMENT WAS FRAMED ON THE BASIS OF REVISED R ETURN. THE ORIGINAL RETURN WAS ALSO AVAILABLE WITH THE AO WHEREAS THE A SSESSEE HAD WITHDRAWN THE RELIEF U/S. 80-IA OF THE ACT SUBSEQUE NTLY. WE FIND THAT THIS ARGUMENT IS NOT CORRECT. IN THE PRESENT CASE, ONLY AFTER FILING THE REVISED RETURN BY THE ASSESSEE, THE ASSESSMENT WAS FRAMED ON THE BASIS OF SUCH REVISED RETURN, WHICH IS APPARENT FROM THE RELEVANT PORTION OF THE ASSESSMENT ORDER QUOTED BELOW: ASSESSEE HAS FILED A REVISED RETURN FOR A.Y. 200 1-02 ON 26.3.2004, BY WITHDRAWING THE DEDUCTION CLAIMED AND BY PAYING SELF ASSESSMENT TAX OF RS.33,72,388/- . THE OTHER ISSUES THAT CAME UP DURING THE COURSE OF SCRUTINY ARE AS UNDER AND FOR WHICH THE ASSESSEE WA S ASKED TO FURNISH ITS RESPONSE:- 1. NON RECEIPT OF CONFIRMATION OF ACCOUNTS FROM M/S . SURYA TRANSMISSION TOWARDS LABOUR PAYMENT. 2. THE DENIAL BY M/S LAKSHMI CONSTRUCTIONS, KERALA FOR HAVING UNDERTAKEN LABOUR CONTRACT WORK FOR THE ASSESSEE. 3. DENIAL BY NALCO, BHUBANESWAR FOR HAVING MADE SAL ES TO THE ASSESSEE COMPANY. ITA NOS.634, 688 TO 693(B)/08 10 ASSESSEE HAS SUBSEQUENTLY FURNISHED THE CONFIRMATI ON OF ACCOUNTS FROM M/S. SURYA TRANSMISSION LTD. THE SAM E HAS BEEN VERIFIED AND PLACED ON RECORD. IT IS SUBMITTED THAT THE PURCHASES FROM NALCO WERE ROUTED THROUGH THE NATIONAL SMALL INDUSTRIES CORPOR ATION LTD., BANGALORE WHO ARE THE ASSESSEES CONSIGNMENT AGENTS. INVOICES AND DELIVERY NOTES OF NALCO WAS FURNISHED FOR VERIFICATION. THE SAME IS FOUND TO BE IN ORDER. DETAILED STATEMENT OF ACCOUNT OF LAKSHMI CONSTRUCT IONS WAS ENCLOSED FOR VERIFICATION. THE SAME IS ACCEPTE D. ASSESSEE HAS ALSO FURNISHED SITE-WISE PARTICULARS OF LABOUR CHARGES RECEIVED AND PAID WHICH HAVE BEEN EX AMINED AND PLACED ON RECORD. AFTER DISCUSSION AND KEEPING IN VIEW THE ABOVE FAC TS, THE ASSESSMENT IS FINALISED AS PER REVISED RETURN FILED BY THE ASSESSEE . TOTAL INCOME RETURNED AS PER REVISED RETURN RS.2,27,14,450/- TAX THEREON @ 35% RS. 79,50,057 ADD SC @ 13% RS. 10,33,507 ------------------- PAYABLE RS. 89,83,564 LESS: TDS RS. 11,84,563 ------------------- PAYABLE RS. 77,99,001 ADD: INT. U/S 234B RS. 20,90,484 INT. U/S. 234C RS. 5,90,774 ------------------- PAYABLE RS.1,04,80,259 LESS: 140A PAID ON I) 1.10.01 50,00,000 II) 31.10.01 1,71,392 III) 26.3.04 33,72,388 ------------- RS. 85,43,780 ------------------ BALANCE PAYABLE RS. 19,36,479 ------------------ ISSUE DN & CHALLAN. PENALTY PROCEEDINGS US/. 271(1)(C) INITIATED. (EM PHASIS SUPPLIED BY US) 8. IT IS CLEAR FROM THE AFORESAID FINDING OF THE AO IN THE ASSESSMENT ORDER THAT THE ORDER OF ASSESSMENT WAS BASED ON THE TOTAL INCOME ITA NOS.634, 688 TO 693(B)/08 11 DECLARED BY THE ASSESSEE IN THE REVISED RETURN ONLY . EVEN IF WE ACCEPT THE CONTENTION OF THE LD. DR THAT THE PRESENT ASSES SMENT HAS BEEN FRAMED ON THE BASIS OF ORIGINAL RETURN, IN THAT EVE NT ALSO, THE ORDER OF ASSESSMENT WILL BE TIME BARRED U/S. 153 OF THE ACT. 9. APART FROM THAT IT IS SETTLED LAW THAT THE REVIS ED RETURN CAN BE FILED ONLY IF THERE IS AN OMISSION OR WRONG STATEMENT IN THE ORIGINAL RETURN. IN THE CASE OF CIT V. ANDHRA COTTON MILLS LTD. (219 ITR 404)(AP), THE ANDHRA PRADESH HIGH COURT HELD THAT IN THE ORIGINAL RETURN, THE PROFIT & LOSS ACCOUNT CONTAINING THE PROVISION FOR DEPRECI ATION WAS FILED. SUBSEQUENTLY, THE CLAIM OF DEPRECIATION WAS WITHDRA WN BY FILING A REVISED RETURN U/S. 139(5) OF THE ACT. THE HONBLE HIGH COURT HELD THAT SUCH REVISED RETURN WAS NOT A VALID RETURN SINCE TH ERE WAS NO OMISSION OR WRONG STATEMENT IN THE ORIGINAL RETURN. IN THE PRESENT CASE ALSO, WE FIND THAT A REVISED RETURN WAS FILED BY THE ASSESSE E PURSUANT TO THE SURVEY AS INSTRUCTED BY THE REVENUE AUTHORITIES. T HE ASSESSEE HAS BEEN CLAIMING DEDUCTION U/S. 80-IA SINCE THE FINANCIAL Y EAR 1997-98 ONWARDS AND IT WAS BEING ALLOWED. THERE IS NO REAS ONED ORDER PASSED BY THE AO IN ANY OF THE YEARS ON MERIT OF THE CLAIM REGARDING SECTION 80-IA OF THE ACT. IN VIEW OF THE AFORESAID CIRCUMS TANCES, WE HOLD THAT THE REVISED RETURN WAS NOT A VALID RETURN SINCE THE SAME IS ALREADY TIME BARRED AS NOTED ABOVE. CONSEQUENTLY, THE ORDER OF ASSESSMENT FRAMED BY THE AO ON THE BASIS OF SUCH REVISED RETURN CANNO T BE SUSTAINED IN LAW. HENCE THE SAME IS QUASHED. ITA NOS.634, 688 TO 693(B)/08 12 10. IN THE RESULT, THE APPEAL IS ALLOWED. LEARNED DR COULD NOT DISPUTE THE SAME EXCEPT SUBMIT TING THE REVENUE HAS PREFERRED APPEAL BEFORE THE JURISDICTIO NAL HIGH COURT. WITHOUT BEING PREJUDICE TO THE MERIT OF THE CASE, I T IS NOT APPROPRIATE ON PART OF LOWER JUDICIAL FORUM TO ADJU DICATE ON THE ISSUE SUBJUDICE BEFORE THE HONBLE KARNATAKA HIGH C OURT. MOREOVER, WE ARE SUPPOSE TO RESPECT AND FOLLOW DECI SIONS OF CO- ORDINATE BENCH. 11. EVEN THE MISCELLANEOUS PETITION NO.38(B)/2008 (AY:2001-02) ARISING FROM ABOVE SAID MATTER IN ITA NO.116(B)/06 MOVED ON BEHALF OF REVENUE WAS DISMISSED BY THE ITAT VIDE ORDER DATED 01-07-2008, WHICH READS AS UNDER; DURING THE COURSE OF HEARING OF THE PETITION, IT TRANSPIRED THAT AGAINST THE ORDER OF THE TRIBUNAL, THE DEPARTMENT HAS MOVED THE PETITION BEFORE THE HONBL E HIGH COURT OF KARNATAKA ON A SUBSTANTIVE QUESTION O F LAW ARISING FROM THE ORDER OF THE TRIBUNAL. APART F ROM THE ABOVE, THE TRIBUNAL HAS GIVEN A FINDING IN ITS ORDER THAT THE RETURN THAT WAS STATED TO HAVE BEEN FILED U/S 139*(5) IS INVALID AND THE ASSESSMENT HAV ING BEEN FRAMED ON SUCH AN INVALID RETURN IS ALSO INVAL ID. THIS BEING A CATEGORICAL FINDING GIVEN, THE PRESENT PETITION WOULD BE SEEKING REVIEW OF THE SAME AND, THEREFORE, WE HAVE TO REJECT THIS CLAIM OF THE REVE NUE. ITA NOS.634, 688 TO 693(B)/08 13 EVEN THIS REGARD NOTHING CONTRARY WAS BROUGHT TO O UR KNOWLEDGE ON BEHALF OF REVENUE. ALL THE RESPECTIVE ORDERS OF CIT(A) GRANTING RELIEF TO ASSESSEE HAVE BEEN OPPOSED BEFORE US. 12.. BEFORE US, LEARNED DR WITH REGARDS TO ASSESSM ENT U/S 143(3) READ WITH SEC.147 SUBMITTED THAT THE CIT(A) ERRED I N HOLDING THAT THE ASSESSMENT WAS CONCLUDED U/S 143(3) READ WITH SEC.1 47 IS PASSED ON REVISED RETURN OF INCOME FILED BY THE ASSESSEE AS A GAINST THE FACT THAT THE ASSESSMENT WAS CONCLUDED ON THE RETURN FILED IN RESPONSE TO NOTICE U/S 148. THE REVENUE HAS ALSO OPPOSED THE ORDER OF CIT(A),WHO HAS RELIED UPON THE DECISION OF ITAT IN ITA NO.116(B)/2 006 DATED 21-09- 2007 FOR AY: 2001-02(SUPRA) BECAUSE REVENUE HAD GON E AGAINST THE SAID ORDER BEFORE THE JURISDICTIONAL HIGH COURT. IT WAS ALSO SUBMITTED THAT THE DECLARED INCOME AS PER REVISED RETURN CANN OT BE DISPUTED WHEN RETURN WAS FILED VOLUNTARILY. IT WAS ALSO SUB MITTED THAT THE CIT(A) HAS IGNORED THE FACT THAT THE ASSESSEE NEVER PRODUC ED ANY EVIDENCE WITH RESPECT TO ITS CLAIM OF DEDUCTION U/S 80IA. TH E SURVEY PROCEEDINGS REVEALED THAT THE ASSESSEE IS NOT ELIGIBLE FOR SAID DEDUCTION IN RESPECT OF TUMKUR UNIT. IT IS ONLY THEN THE ASSESSEE FILED RE VISED RETURN OF INCOME WITHDRAWING ITS CLAIM IN RESPECT OF TUMKUR U NIT. THE CIT(A), HOWEVER NOT JUSTIFIED IN IGNORING THE FACT THAT THE REVISED RETURN FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON ORIG INAL RETURN. ONLY A COMMITTED FACTS BY THE ASSESSEE HAS BEEN TAKEN INTO CONSIDERATION FOR ITA NOS.634, 688 TO 693(B)/08 14 DISALLOWANCE OF DEDUCTION U/S 80IA ON TUMKUR UNIT. SIMILAR IS THE STAND WITH REGARDS TO RELIEF GRANTED TO OTHER ASSES SMENT YEARS WHICH WERE CONCLUDED U/S 143(3) READ WITH SEC.153A OF THE IT ACT. IN THIS REGARD, THE STAND OF THE REVENUE IS THAT THE ASSESS MENT WAS CONCLUDED ON RETURN FILED IN RESPONSE TO NOTICE U/S 153A. BE SIDES THIS, LEARNED DR RELIED ON THE DECISION IN 203 ITR 456(SC) IN THE CASE OF PHOOLCHAND BAJRANG LAL AND ANOTHER VS ITO(1993) 203 ITR 456 AND IN THE CASE OF SRI KRISHNA PVT. LTD.,ETC. VS ITO(1996) 221 ITR 53 8. 13. ON THE OTHER HAND, LEARNED AR SUPPORTED THE O RDER OF CIT(A) AND SUBMITTED THAT THE CIT(A) WAS JUSTIFIED IN GIVI NG ITS FINDING UNDER FACTS AND CIRCUMSTANCES INCLUDING THE DECISIONS IN ASSESSEES OWN CASE IN ITA NO.116(B)/06 AY: 2001-02. BESIDES THIS, LE ARNED AR ALSO SUPPORTED THE ORDER OF CIT(A) ON FOLLOWING CASE LAW S CITED; 1. CIT & ANR. VS FORAMER FRANCE-264 ITR 566(SC) 2. VENKATESH POWER WORKS VS CIT278 436(KAR.) 3. CIT & ANR. VS SAIPEM SPA -300 ITR 133(UTTARAKH AND) 4. CIRCULAR NO.549 DATED 31-10-1111989(RELEVANT PO RTION) 5. CIRCULAR F.NO.286/2/2003-IT(INV.) DATED 10-03-2 003 14. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE SUBMITTED ORIGINA L ASSESSMENT U/S 143(3)IN AY: 1998-99 WAS PASSED ON 16-03-2001 AFTER CALLING VARIOUS DETAILS AND INFORMATION, THE DEDUCTION CLAIMED WAS VERIFIED AND THE ITA NOS.634, 688 TO 693(B)/08 15 SAME WAS ALLOWED RESTRICTING IT TO RS.30,13,535/- A GAINST THE ORIGINAL CLAIM OF RS.36,95,331/-. HOWEVER, IN PURSUANT TO SU RVEY THE ASSESSEE WITHDREW THE CLAIM OF DEDUCTION U/S 80-IA AND VOLUN TARILY FILED REVISED RETURN AND PAID THE TAX TO THE TUNE OF RS.10,54,737 /-. SIMILAR IS THE STAND OF ASSESSEE IN OTHER ASSESSMENT YEARS. ACCOR DING TO LEARNED AR, THIS WAS DONE TO AVOID PROTRACTED LITIGATION AND TO BUY PEACE. 15 IN THIS CONNECTION, A REMAND REPORT AND ASSESSM ENT RECORDS WERE CALLED FROM THE ASSESSING OFFICER BY THE CIT(A ) HAVING GONE THROUGH THE ASSESSMENT ORDER U/S 143(3) DATED 16-03 -2001 FILED BEFORE HIM ON BEHALF OF THE ASSESSEE FOUND THAT THE ASSESS EE DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 1998- 99 HAS STARTED A NEW INDUSTRIAL UNDERTAKING AT TUMKUR WHICH QUALIFIE S FOR DEDUCTION U/S 80-IA THE ASSESSEE PRODUCED BOOKS OF ACCOUNTS R ELATING TO THE MANUFACTURING ACTIVITY OF TUMKUR. THE MANUFACTURIN G TURNOVER OF THE ASSESSEE AT TUMKUR UNIT IS A RS.42,73,14,979/-. ONL Y THE MANUFACTURING TURNOVER OF THE ASSESSEE AT TUMKUR UN IT IS ELIGIBLE FOR DEDUCTION U/S 80-IA. AGAIN, IN PARA-6.3 OF THE SAI D ASSESSMENT ORDER, THE ASSESSING OFFICER MENTIONED THAT IN VIEW OF THE ABOVE DISCUSSIONS, THE 80-IA DEDUCTION CLAIMED BY THE ASSESSEE IS REWO RKED OUT AS UNDER; TOTAL GROSS INCOME ELIGIBLE FOR DEDUCTION U/S 80-IA RS.1,62,12,320/- 30% OF TURNOVER OF TUMKUR UNIT RS. 30,13,535/ ITA NOS.634, 688 TO 693(B)/08 16 16. THE CIT(A) ALSO VERIFIED THE ASSESSMENT RECORD S. FROM THE STUDY OF ORDER SHEET PAGES-1 DATED 08-10-1999, CIT( A),FOUND THAT THE ASSESSING OFFICER CLEARLY ASKED FOR DETAILS OF 80-I A TURNOVER AND OTHER SEVENTEEN DETAILS. THE ORDER SHEET DATED 26-02-2001 REVEALED THAT THE DETAILS CALLED FOR WERE FURNISHED. THE DETAILS REGA RDING CLAIM OF DEDUCTION U/S 80-IA WERE THOROUGHLY INQUIRED INTO A ND AFTER VERIFICATION OF THE BOOKS OF ACCOUNT RELATING TO MA NUFACTURING UNIT AT TUMKUR, THE SAME WAS ALLOWED BY THE ASSESSING OFFIC ER IN HIS ORIGINAL ORDER U/S 143(3) DATED 16-03-2001. THIS FACT HAS NO T BEEN DISPUTED BY THE REVENUE. 17. THE FIRST APPELLATE AUTHORITY HAS SURPRISINGLY NOTED THAT THE ASSESSING OFFICER WHO PASSED THE ORDER U/S 143(3) R .W.S.147 ON 27-02- 2006 VIDE PARA-10 STATED THAT THERE IS NOTHING ON R ECORD TO SUGGEST THAT THE ASSESSEE HAS DISCLOSED TO THE ERSTWHILE AS SESSING OFFICER THAT THE SO CALLED NEW INDUSTRIAL UNDERTAKING AT TUMKUR WAS IN FACT A 20 YEARS OLD MANUFACTURING UNIT. THE ERSTWHILE ASSESS ING OFFICER GOES ON TO STATE THAT HE DOES NOT FIND ANYTHING IN THE RECO RD THAT THIS TYPE OF CLAIM HAS BEEN MADE OR THE FACTS RELEVANT TO SUCH A CLAIM WERE DISCLOSED DURING THE ORIGINAL ASSESSMENT. 18. THE FIRST APPELLATE AUTHORITY FOUND THAT VARIO US DETAILS WERE CALLED BY THE ASSESSING OFFICER DURING ORIGINAL ASS ESSMENT AS MENTIONED BELOW; ITA NOS.634, 688 TO 693(B)/08 17 A) TURNOVER DETAILS B) CONSULTANCY DETAILS C) CLARIFICATION OF RULE6(1) D) MANAGERIAL REMUNERATION E) PURCHASE FROM RELATED PARTIES F) SOURCE OF FUNDS TO INCREASE SHARE CAPITAL G) SECURED AND UNSECURED LOANS ETC. H) INTEREST NETTING DETAILS I) BANK CHARGES, COMMISSION DETAILS ETC. 19. IN THIS BACKGROUND, THE FIRST APPELLATE AUTHOR ITY, THE ASSESSING OFFICER INTENTIONALLY OMITTED 80-IA TURN OVER DETAILS AND MENTIONED ONLY TURNOVER DETAILS WHICH IS VERY EVI DENT AND CLEAR FROM THE ORDER SHEET DATED 08-10-999. THIS FACT WAS VERI FIED BY THE CIT(A) FROM THE ORIGINAL ASSESSMENT RECORD FOR THE ASSESSM ENT YEAR 1998-99 AND OBSERVED THAT THE FINDING OF ASSESSING OFFICER IN RE-ASSESSMENT PROCEEDINGS WERE CONTRARY TO RECORD. 20. THE FIRST APPELLATE AUTHORITY FURTHER ANALYSED WHETHER THE REVISED RETURN FILED ON 22-03-2004 BY THE ASSESSEE WITHDRAWING THE CLAIM OF DEDUCTION U/S 80-IA WAS VALID ONE. FURTHER , WHETHER THE ASSESSMENT MADE ON THE BASIS OF THE REVISED RETURN DISALLOWING DEDUCTION U/S 80-IA WAS JUSTIFIED. IN THIS REGARD, THE STAND OF THE ASSESSEE IS THAT DURING THE COURSE OF SURVEY ASSESS EE WAS ADVISED BY THE SURVEY PARTY ACCORDINGLY, THE ASSESSEE FILED RE VISED RETURN AND ITA NOS.634, 688 TO 693(B)/08 18 WITHDREW CLAIM OF DEDUCTION U/S 80-IA. THE REVISED RETURN FILED ON 22- 03-2004 IS AN INVALID RETURN, BECAUSE SAME WAS FILE D BEYOND THE TIME PRESCRIBED U/S 139(5). THE DISALLOWANCE MADE ON THE BASIS OF THE REVISED RETURN IS NOT JUSTIFIED, BECAUSE THE SAME W AS TIME BARRED. UNDER THESE FACTS AND CIRCUMSTANCES AND FOLLOWING T HE DECISION OF THE HONBLE ITAT IN THE APPELLANTS OWN CASE FOR THE AS SESSMENT YEAR 2001- 02 VIDE ITA NO.116(B)/2006 DATED 21-09-2007 DISCUSS ED ABOVE, THE CIT(A) WAS JUSTIFIED TO HOLD THAT THE DEDUCTION U/S 80-IA AMOUNTING TO RS.30,13,530/- HAS TO BE ALLOWED BECAUSE THE ASSESS ING OFFICER CANNOT PASS ASSESSMENT ORDER ON THE BASIS OF THE REVISED R ETURN, WHICH IS BARRED BY LIMITATION. ACCORDINGLY, THE DISALLOWANC E IN QUESTION WERE RIGHTLY CANCELLED. WE UPHOLD THE SAME. SIMILAR I S THE SITUATION WITH REGARDS TO ACTION IN OTHER YEAR, WHEREIN RESPONSE T O NOTICE U/S 153A OF ACT DEDUCTION U/S 801A WERE DISALLOWED IN OTHER YEA RS. 21. WITH REGARDS TO INITIATION OF NOTICE AND PROCE EDINGS U/S 148, WE FIND THAT THE REASON FOR RE-OPENING THE ASSESSME NT U/S 147 BY ISSUE OF NOTICE IS AS UNDER: DURING THE COURSE OF SURVEY U/ 133A OF THE INCOM E- TAX ACT ON 09-03-2004 THE FACTORY PREMISES OF M/S DEEPAK CABLES (INDIA) LIMITED, NO.N-1, INDUSTRIAL ESTATE, TUMKUR. IT WAS FOUND THAT THE ASSESSEE WAS WRONGLY CLAIMING DEDUCTION U/S 80-IA TO THE TUNE OF RS.30,13,535/-. ITA NOS.634, 688 TO 693(B)/08 19 THE SAME WAS PUT FORTH BEFORE THE ASSESSEE. THE ASSESSEE ACCEPTED THE SAME AND HAS FILED THE REVISE D RETURN ON 22-3-2004 WITHDRAWING THE CLAIM OF SEC.80 - IA. IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THA T BY VIRTUE OF OMISSION ON THE ART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE MATERIAL FACTS NEC ESSARY FOR COMPUTATION OF INCOME IN AS MUCH AS CLAIM OF DEDUCTION U/S 80-IA OF THE INCOME-TAX ACT, 1961. HENCE, I HAVE REASON TO BELIEVE THAT THE ASSESSEE S INCOME ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SEC.147 . IN THIS REGARD STAND ON BEHALF OF ASSESSEE WAS THAT NO INCRIMINATING DOCUMENT/INFORMATION WAS FOUND DURING ABOVE MENTION ED SURVEY. THERE IS NO MENTION IN THE REASONS FOR RE-OPENING A S TO WHETHER ANY MATERIALS FOUND DURING THE COURSE OF SURVEY WITH RE GARD TO OUR CLAIM U/S 80-IA. THERE IS NOTHING ON RECORD TO SUGGEST T HAT THE CLAIM MADE U/S 80-IA AND ALLOWED AFTER VERIFICATION IN ORIGINA L ASSESSMENT WAS PROVED TO BE WRONG DURING AND CONSEQUENT TO SURVEY PROCEEDING. THE CLAIM OF ASSESSEE IN ACCORDANCE WITH THE DECISION O F THE HONBLE SUPREME COURT IN (1997) 107 ITR 195(SC) IN TEXTILE MACHINERY CORPORATION LTD VS CIT, WHEREIN IT WAS OBSERVED THA T THE TRUE TEST IS NOT WHETHER THE NEW INDUSTRIAL UNDERTAKING CONNOTES EXPLANATION OF EXISTING BUSINESS OF ASSESSEE, BUT WHETHER IT IS AL L THE SAME AS NEW AND ITA NOS.634, 688 TO 693(B)/08 20 IDENTIFIABLE UNDERTAKING SEPARATE AND DISTINCT TO F ROM EXISTING BUSINESS. THERE MUST BE NEW EMERGENCE OF PHYSICAL LY SEPARATE UNIT WHICH MAY EXIST ON ITS OWN AS A VIABLE INDUSTRIAL U NIT. IN CASE BEFORE US, AFTER MODERNIZATION AND EXPANSION NEW UNDERTAKI NG HAS COME INTO EXISTENCE WHICH IS INTEGRATED UNIT BY ITSELF. THIS FACT HAS NOT BEEN NEGATED BY REVENUE BY COGENT REASONING. 22. WITHOUT PREJUDICE TO ABOVE, WE FIND THAT THER E IS NO ESTOPPELS AGAINST LEGAL PREPOSITIONS. THE STATEMENT/CONFESSIO N ESTABLISHED LEGAL PREPOSITION IS NOT JUSTIFIED. INDIVIDUAL IS A SMAL L PERSON AGAINST STATE. THIS FACT SHOULD BE KEPT IN MIND WHILE DEALING WITH SUCH CONFESSION. REVENUE HAS HEAVILY RELIED ON STATEMENT RECORDED DU RING THE COURSE OF SURVEY U/S 133A OF THE INCOME-TAX ACT ON 09-03-2004 FROM THE EXECUTIVE DIRECTOR WHEREIN HE HAD ACCEPTED FOR WITH DRAWING THE CLAIM U/S 80-IA OF THE INCOME-TAX ACT. THE ASSESSMENT IN QUESTION WAS MADE BASED MAINLY ON THE ABOVE STATEMENT OF THE EXECUTIV E DIRECTOR AND PENALTY PROCEEDING U/S 271(1)(C )WAS ALSO INITIATED . IT IS SETTLED LEGAL POSITION THAT ASSESSMENT CAN NOT BE MADE ON THE BAS IS OF STATEMENT/CONFESSION ALONE RECORDED DURING THE COUR SE OF SURVEY OR SEARCH. HOWEVER, IN SUCH SITUATION, ADDITION CAN BE MADE ON THE BASIS OF CORROBORATING FACTS/EVIDENCE IN THIS REGARD. TH E CONFESSION FOR STATEMENT CAN BE RETRACTED WITHIN REASONABLE TIME A ND WITH COGENT REASONING WHICH HAS BEEN DONE IN THIS CASE. ACCORD INGLY, THE SAID ITA NOS.634, 688 TO 693(B)/08 21 STATEMENT ALONE CANNOT BE A REASON FOR REOPENING TH E ASSESSMENT. THERE WAS NO OMISSION ON THE PART OF ASSESSEE TO DI SCLOSE FULLY AND TRULY ALL MATERIAL FACT NECESSARY FOR COMPUTATION O F INCOME FOR COMPUTING DEDUCTION U/S 801A OF THE ACT. 23. WITHOUT PREJUDICE TO THE ABOVE, THE ASSESSMENT MADE FOR THIS YEAR WAS U/S 143(3) AND THE NOTICE U/S 147 WAS ISSU ED ON 08-04-2004 BEYOND FOUR YEARS FROM THE END OF THE RELEVANT ASSE SSMENT YEAR. IN TERMS OF PROVISO TO SECTION 147 NO ACTION CAN BE TA KEN UNDER THIS SECTION BECAUSE IN THE ASSESSMENT IS U/S 143(3) AS WE HAD DISCLOSED ALL THE MATERIAL FACTS NECESSARY FOR ASSESSMENT. THE S O-CALLED RETURN FILED ON 22-03-004 IS NOT A VALID RETURN IN THE EYE OF LA W AND HENCE NO ACTION CAN BE INITIATED ON THE BASIS OF THE INVALID RETURN. 24. FURTHER, THE HONBLE ITAT IN THE APPELLANTS O WN CASE FOR THE ASSESSMENT YEAR 2001-02 WHICH ASSESSMENT HAS BEEN R ELIED ON BY THE AO TO JUSTIFY THE RE-OPENING HAS HELD THE ASSESSMEN T MADE BASED ON AN INVALID RETURN AS A NULLITY AND THE ASSESSMENT MADE BASED ON SUCH REVISED RETURN CANNOT BE SUSTAINED IN LAW AND ACCOR DINGLY SAME AS QUASHED AS DISCUSSED ABOVE. 25. WE FURTHER FIND THAT THE ORIGINAL ASSESSMENT U /S 143(3) HAS BEEN COMPLETED AFTER VERIFICATION OF THE CLAIM BY T HE ASSESSEE U/S 80- IA. THE ASSESSING OFFICER IN PARA-6 OF THE ASSESSM ENT ORDER HAS EXTENSIVELY DISCUSSED AND HAS PARTIALLY ALLOWED THE CLAIM OF THE ITA NOS.634, 688 TO 693(B)/08 22 ASSESSEE. THUS, THE ASSESSEE HAS DISCLOSED ALL THE MATERIAL INFORMATION THAT IS REQUIRED TO BE DISCLOSED ON THIS ISSUE. ACC ORDINGLY, THE LIMITATION FOR RE-ASSESSMENT IN THIS CASE IS WITHIN FOUR YEARS FROM THE END OF THE ASSESSMENT YEAR I.E. BEFORE 31-03-2003. WHEREAS IN THIS CASE, THE NOTICE HAS BEEN ISSUED ON 08-4-2004 THIS IS CLEARLY OUTSIDE THE TIME LIMIT PRESCRIBED UNDER THE ACT. THE PRESE NT RE-ASSESSMENT PROCEEDINGS IS MERELY BASED ON CHANGE OF OPINION AN D IS AN INVALID PROCEEDINGS. THIS VIEW IS FORTIFIED BY THE RATIO O F THE JURISDICTIONAL HIGH COURT IN THE CASE OF VENKATESH POWER WORKS VS CIT ( 2005) 278 ITR 436 HELD THAT AFTER DISCOVERY OF THE PRIMARY FACTS RELA TING TO THE TRANSACTIONS EVIDENCED BY THE DRAFTS, IT WAS FOR TH E OFFICER TO MAKE THE NECESSARY ENQUIRIES AND DRAW PROPER INFERENCE AS TO WHETHER THE AMOUNTS REPRESENTED BY THE DRAFTS CANNOT BE TREATED AS PART OF THE TOTAL INCOME OF THE APPELLANT. IT COULD NOT BE SAID THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT BY REASON OF OMISSION OR FAILURE ON THE PART OF THE APPELLANT TO DISCLOSE FU LLY AND TRULY ALL MATERIAL FACTS. THE RE-OPENING OF ASSESSMENT AFTER EXPIRY OF FOUR YEARS WAS HELD BARRED BY LIMITATION UNDER PROVISO TO SEC. 147 AS DISCUSSED ABOVE. IN VIEW OF ABOVE DISCUSSION, WE HOLD THAT T HE ASSESSING OFFICER HAS NO JURISDICTION TO RE-OPEN THE ASSESSMENT U/S14 7. AS THE ISSUE OF NOTICE U/S 148 IS BARRED BY LIMITATION, THE ASSESSM ENT ORDER PASSED ITA NOS.634, 688 TO 693(B)/08 23 U/S 143(3) RWS 147 IS NOT VALID AS PER LAW. SAME W AS RIGHTLY REJECTED BY THE CIT(A). WE UPHOLD THE SAME. 26. SIMILAR ISSUE HAS BEEN RAISED IN OTHER ASSESSM ENT YEARS U/S 143(3) R.W.S. 153A OF THE IT ACT AS DISCUSSED ABOVE . THE FACTS BEING SAME, SO FOLLOWING THE SAME REASONING, THE ORDERS O F CIT(A) IN ALL THE YEARS ARE UPHELD. IT IS PERTINENT TO MENTION HERE THAT ALL THE CASE LAWS RELIED UPON BY BOTH PARTIES HAVE BEEN TAKEN INTO CO NSIDERATION, THOUGH THE SAME HAVE NOT BEEN SPECIFICALLY MENTIONED. 27. AS A RESULT, ALL THE APPEALS FILED BY THE R EVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 27 TH NOVEMBER, 2009. (A. MOHAN ALANKAMONY) (SHAILENDRA KUM AR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: BANGALORE DATED: 27-11-2009 AM* COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. CIT(A) 4. CIT 5. DR 6. GF(BLORE) 7. GF(DELHI) BY ORDER AR, ITAT, BANGAL ORE ITA NOS.634, 688 TO 693(B)/08 24