DCIT, Moradabad V. M/s. Jubilant Organosys Ltd., Gajraula

ITA 6732/DEL/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2282 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 05-07-2017
• Assessment Year: 1996-1997
• Appeal Filed On: 24-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL
• Keywords: Reopening of assessment; Tangible material; Difference of opinion; Assessment record; Reason to believe; Change of opinion; Reassessment proceedings; Set aside
• Section: 143(3)

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D : NEW DELHI BEFORE SHRI BHAVNESH SAINI , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 6732/DEL/2013 (ASSESSMENT YEAR: 1996 - 97 ) DCIT, CIRCLE - 1, MORADABAD VS. JUBILANT ORGANOSYS LTD, (NOW KNOWN AS M/S. JUBILANT LIFE SCIENCES LTD) GAJRAULA CY - 7587/MBD (APPELLANT) (RESPONDENT) REVENUE BY: SMT NAINA SOIN KAPIL, SR. DR ASSESSEE BY : SHRI GAURAV JAIN, ADV MS. DEEPIKA AGARWAL, ADV DATE OF HEARING 02/04 / 201 9 DATE OF PRONOUNCEMENT 2 5 / 06 / 2019 O R D E R PER PRASHANT MAHARISHI, A. M. 1 . THIS APPEAL IS FILED BY THE LD DCIT, CIRCLE - 1, MORADABAD AGAINST THE ORDER OF THE LD CIT(A), BARIELY DATED 30.09.2013. 2 . GROUNDS OF APPEAL ARE AS UNDER: - 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON THE CIRCUMSTANCES OF THE CASE ACCEPTING THE REPLY OF THE ASSESSEE AND CANCELLED REASSESSMENT PROCEEDINGS COMPLETED U/: 148 OF INCOME TAX. 2. THAT THE LD CIT(A) HAS ERRED IN LAW AND ON THE CIRCUMSTANCES OF THE CASE IN HOLDING THAT NOTICE ISSUED U/S 148 OF THE ACT IS INVALID AFTER ACCEPTING THE DECISION RELIED UPON BY THE ASSESSEE AS THE FACTS OF THE DECISION RELIED ARE NOT COMPARABLE WITH THE FA CTS OF THE CASE OF THE ASSESSEE. 3. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON THE CIRCUMSTANCES OF THE CASE IN NOT APPRECIATING THE REASONS RECORDED BY THE AO THAT THERE WAS REASON TO BELIEVE FOR ISSUE OF NOTICE U/S 148 OF THE ACT AND IT WAS NOT ISSUED ON CHANGE OF OPINION. 4. THAT THE LD. CIT(A) HAS ERRED IN LAW IN NOT APPRECIATING THAT THE ASSESSMENT WAS CORRECTLY REOPENED IN THE LIGHT OF DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF EMA INDIA LTD VS ACIT(2009)226CTR(ALL)659. PAGE | 2 3 . BRIEF FACTS OF T HE CASE IS THAT THE ASSESSEE FILED RETURN OF INCOME ON 30.11.1996 SHOWING TOTAL INCOME OF RS. 18 , 16 , 23 , 153/ - WHICH WAS REVISED ON 19.11.1997 SHOWING TOTAL INCOME OF RS. 18 , 19 , 88 , 395/ - . THE ASSESSMENT U/S 143(3) WAS COMPLETED ON 10.12.1997 AT RS. 191946410/ - . SUBSEQUENTLY, ON APPEAL EFFECT ORDER OF THE LD CIT(A) THE TOTAL INCOME WAS ASSESSED AT RS. 18,83,48,750 / - ON 12.09.2000/ - . 4 . NOTICE U/S 148 OF THE ACT WAS ISSUED TO THE ASSESSEE ON12.06.1998.THE MAIN REASONS RECORDED BY THE LD AO SHOWS THAT HE HAS REOPENED THE CASE O N VERIFICATION OF THE RETURN OF INCOME AND ASSESSMENT ORDER AND NOTED THAT CERTAIN EXCESS DEDUCTION WERE CLAIMED BY THE ASSESSEE. CONSEQUENTLY, THE ASSESSMENT ORDER U/S 148 READ WITH SECTION 143(3) OF THE ACT WAS PASSED ON 28.03.2001 D ETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 20 , 81 , 13 , 830/ - . THE ASSESSEE PREFERRED APPEAL BEFORE THE LD CIT(A), BAREILLY WHO CONFIRMED THE REOPENING OF THE ASSESSMENT AND GRANTED CERTAIN RELIEF TO THE ASSESSEE ON MERITS . 5 . THE ASSESSEE PREFERRED AN A PPEAL BEFORE THE COORDINATE BENCH IN ITA NO. 4306/DEL/2003 CHALLENGING THE VALIDITY OF THE REOPENING PROCEEDINGS. THE COORDINATE BENCH VIDE ORDER DATED 13.06.2008 SET ASIDE THE ISSUE OF VALIDITY OF REOPENING TO THE FILE OF THE LD CIT(A). CONSEQUENTLY , THE LD CIT(A) ON 30.09.2013 PASSED AN ORDER HOLDING THAT THE REOPENING IS MERELY ON THE CHANGE OF OPINION AND HENCE QUASHED. THEREFORE, THE LD AO AGGRIEVED , HAS PREFERRED THIS APPEAL. 6 . THE LD DR VEHEMENTLY REFERRED TO THE REASONS RECORDED AND SUBMITTED THAT REOPENING HAS BEEN VALIDLY MADE BY THE LD AO. 7 . THE LD AR VEHEMENTLY REFERRED TO THE REASONS RECORDED AND SUBMITTED THAT REOPENING HAS BEEN DONE MERELY ON THE BASIS OF VERIFICATION OF THE RETURN OF INCOME AS WELL AS THE ASSESSMENT ORDERS. HE FURTHER SUBMITT ED THAT THERE IS NO TANGIBLE MATERIAL COMING INTO THE POSSESSION OF THE LD AO AND HENCE, THE LD CIT(A) HAS CORRECTLY QUASHED THE REOPENING OF ASSESSMENT. 8 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE REASONS RECORDED BY THE LD AO WHICH ARE PLACED AT PAGE NO. 79 TO 82 OF THE PAPER BOOK. THE LD AO HAS STATED THAT ON GOING THROUGH THE RETURN OF INCOME AND ASSESSMENT ORDER HE FOUND THAT THE ASSESSEE HAS CLAIMED EXCESS DEDUCTION. THEREAFTER, HE LISTED THOSE ISSUES ON WHICH HE PROPOSE D PAGE | 3 THE REOPENING THE ASSESSMENT PROCEEDINGS. HON'BLE SUPRE ME COURT IN CASE OF CIT VS. KEL VINATOR OF INDIA 320 ITR 561 (SC) THAT TO REOPEN CONCLUDED ASSESSMENT PROCEEDINGS THERE MUST BE A TANGIBLE MATERIAL COMING INTO THE POSSESSION OF THE LD AO TO REOPEN THE CASE. IN THE PRESENT CASE , THE LD AO DID NOT HAVE ANY TANGIBLE MATERIAL BUT HAS MERELY LOOKED AT THE RETURN OF INCOME AS WELL AS ASSESSMENT RECORDS AND FROM THAT HE REOPENED THE ASSESSMENT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE LD AO HAS APP LIED MIND TO ISSUE S ON WHICH REOPENING HAS BEEN MADE. THE ORDER OF THE LD CIT(A) HAS HELD THAT IMPUGNED CASE IS A FIT CASE WHEREIN, REOPENING HAS BEEN MADE ON THE BASIS OF MERE CHANGE OF OPINION. IN VIEW OF THIS , WE DO NOT FIND ANY INFIRMITY IN THE ORDER O F THE LD CIT(A) IN QUASHING THE REASSESSMENT PROCEEDINGS. THE LD DR ALSO COULD NOT SHOW US ANY REASON TO DENY THAT REOPENING HAS BEEN DONE IN ABSENCE OF ANY TANGIBLE MATERIAL AND THERE WAS O CHANGE OF OPINION. FROM REASONS RECORDED IT IS EVIDENT THAT AO HA S REOPENED ASSESSMENT ON APPRAISAL OF SAME MATERIAL WHICH WAS BEFORE HIM DURING ORIGINAL ASSESSMENT PROCEEDINGS. HENCE, WE DISMISS ALL THE GROUNDS OF APPEAL CHALLENGING REOPENING OF ASSESSMENT. 9 . ACCORDINGLY, THE APPEAL OF THE LD AO IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN COURT ON 2 5 / 06 / 2019 . - SD/ - - SD/ - ( BHAVNESH SAINI ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 5 / 06 / 2019 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI