M/s Amit Engineers, Baddi V. DCIT, Parwanoo

ITA 828/CHANDI/2014

• Counselvise Citation: 82821514 RSA 2014
• Duration Of Justice: 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-09-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 30-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: RAVI SHANKAR; ROHIT KAURA
• Keywords: Tangible material; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 148; 10; 11; 139; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.828/CHD/2014 (ASSESSMENT YEAR : 2011-12) M/S AMIT ENGINEERS, VS. THE A.C.I.T., VILLAGE JUDDIKALAN, CIRCLE PARWANOO, BADDI, HIMACHAL PRADESH. HIMACHAL PRADESH. PAN: AAEFA5620L (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI RAVI SHANKAR & ROHIT KAURA RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 19.08.2015 DATE OF PRONOUNCEMENT : 14.09.2015 O R D E R PER RANO JAIN, A.M . : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), SHIMLA DATED 23.7.2014. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE FIRM IS HAVING MANUFACTURING UNIT LOCATED AT BADDI AND I S ENGAGED IN MANUFACTURING OF RAIL COACH COMPONENTS AND RAILW AY ELECTRONIC COMPONENTS. THE FIRMS BRANCH IN MOHALI IS TRADING IN RAIL COACH COMPONENTS AND SERVICING OF RAILWAY A IR 2 CONDITIONERS TO THE INDIAN RAILWAYS. THE ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 ON 30. 9.2011 DECLARING INCOME OF RS.5,00,130/- AFTER CLAIMING D EDUCTION UNDER SECTION 80IC OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), AMOUNTING TO RS.4,04,27,570/-. THE INTIMAT ION UNDER SECTION 143(1) OF THE ACT WAS ISSUED TO THE ASSESSE E AS ON 23.7.2012. THEREAFTER, THE ASSESSING OFFICER ISSU ED A NOTICE UNDER SECTION 148 OF THE ACT DATED 14.6.2013 TO REO PEN THE CASE AFTER RECORDING REASONS FOR REOPENING, COPY OF WHICH WAS PLACED ON RECORD AT PAGES 1 TO 3 OF THE PAPER BOOK FILED BY THE ASSESSEE. 3. THE VIEW OF THE ASSESSING OFFICER WAS THAT FOR THE INITIAL FIVE ASSESSMENT YEARS I.E. 2006-07 TO 2010- 11, THE ASSESSEE WAS ALLOWED DEDUCTION UNDER SECTION 80IC O F THE ACT TO THE EXTENT OF 100% OF ELIGIBLE PROFITS. HOWEVER , FOR THE CURRENT ASSESSMENT YEAR I.E. 2011-12 BEING 6 TH YEAR OF THE ASSESSEES BUSINESS ACTIVITIES, IT WAS ELIGIBLE TO GET DEDUCTION UNDER SECTION 80IC OF THE ACT @ 25% INSTEAD OF 100% AS CLAIMED BY THE ASSESSEE. THE ASSESSEE MADE DETAILE D SUBMISSIONS BEFORE THE ASSESSING OFFICER CONTENDING THAT SINCE IT HAS DONE SUBSTANTIAL EXPANSION DURING THE YEAR IT IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IC OF THE AC T @ 100% EVEN IN THIS YEAR. HOWEVER, THE ASSESSING OFFICER DID NOT FIND HIMSELF IN AGREEMENT WITH THE CONTENTION OF THE ASS ESSEE AND ALLOWED IT THE DEDUCTION UNDER SECTION 80IC OF THE ACT @ 25% INSTEAD OF 100% CLAIMED BY IT. IN THIS WAY, THE AD DITION OF RS.3,08,20,803/- WAS MADE AS INCOME OF THE ASSESSEE . 3 4. THE ASSESSEE WENT IN APPEAL BEFORE THE LEARNED CIT (APPEALS), WHEREBY IT MADE SUBMISSIONS ON THE MERIT S OF THE CASE REITERATING THE SAME CONTENTION WHICH WERE PUT -FORTH BEFORE THE ASSESSING OFFICER. IN ADDITION TO THIS , THE ASSESSEE ALSO CHALLENGED THE INITIATION OF PROCEEDI NGS UNDER SECTION 148 OF THE ACT BEFORE THE LEARNED CIT (APPE ALS). IT WAS SUBMITTED BEFORE THE LEARNED CIT (APPEALS) THAT RE- ASSESSMENT PROCEEDINGS WERE NOT VALID AS NO NEW MAT ERIAL HAD COME IN POSSESSION OF THE ASSESSING OFFICER FOR REO PENING THE CASE. IT WAS FURTHER SUBMITTED THAT RE-ASSESSMENT MADE UNDER SECTION 148 R.W.S. 147 OF THE ACT FOR DISALLO WING DEDUCTION, WHICH WAS NOT OBJECTED TO WHEN THE ORIGI NAL RETURN WAS FILED, NEITHER THE CASE WAS TAKEN IN SCRUTINY. RELIANCE WAS PLACED ON A NUMBER OF JUDGMENTS INCLUDING THAT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. SP LS SIDHARTHA LTD. (2012) 345 ITR 223 (DELHI) AND CIT V S. ORIENT CRAFT LTD. (2013) 354 ITR 536 (DELHI). WITH THE H ELP OF THESE JUDGMENTS, IT WAS SUBMITTED THAT THE ASSESSING OFFI CER HAD AN OPINION IN FAVOUR OF THE ASSESSEE BUT AFTERWARDS CH ANGED HIS OPINION AND VIEW REGARDING THE ISSUE OF TREATING TH E YEAR OF SUBSTANTIAL EXPANSION AS THE INITIAL YEAR, THUS MAK ING THE WHOLE REOPENING ON THE CHANGE OF OPINION. IN VIEW OF THIS, IT WAS PRAYED THAT THE ASSUMPTION OF JURISDICTION OF R EOPENING ITSELF IS VOID AB-INITIO AND LIABLE TO BE QUASHED A ND THE APPEAL OF THE ASSESSEE MAY BE ALLOWED IN ITS FAVOUR. ON M ERITS OF THE CASE, THE ASSESSEE RELIED UPON THE ORDER OF THE ITA T DELHI 4 BENCH IN THE CASE OF TIRUPATI LPG INDUSTRIES LTD. VS.. DCIT IN ITA NO.991/DEL/2013 DATED 29.1.2014 AND ANOTHER JUDGMENT OF THE ITAT, CHANDIGARH BENCH IN THE CASE OF ACIT VS. RAGHUNATH SINGH THAKUR IN ITA NOS.152, 469 AND 1144/CHD/2010 DATED 22.6.2010. 5. THE LEARNED CIT (APPEALS) DID NOT FIND HERSELF IN AGREEMENT WITH THE SUBMISSIONS OF THE ASSESSEE, AFT ER ANALYZING THE PROVISIONS OF SECTION 80IC OF THE ACT AND THE ISSUE OF INITIAL YEAR AND SUBSTANTIAL EXPANSION, SH E HELD THAT THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED 100% D EDUCTION AND ALLOWED 25% ON THE PROFITS OF THE UNDERTAKING. HER VIEW WAS THAT SINCE THE ORDER OF THE ITAT, DELHI BENCH I N THE CASE OF TIRUPATI LPG INDUSTRIES LTD. (SUPRA) IS NOT FROM THE JURISDICTIONAL ITAT, IT IS NOT APPLICABLE TO THE CA SE OF THE ASSESSEE. FURTHER, ON THE ISSUE OF REOPENING UNDER SECTION 147 OF THE ACT, SHE HELD THAT THE INITIAL REQUIREME NT FOR REOPENING THE CASE UNDER SECTION 147 OF THE ACT IS THAT THERE MUST BE INFORMATION FOR REOPENING. THE INFORMATION MAY COME FROM EXTERNAL SOURCES OR EVEN FROM MATERIALS ALREAD Y ON THE RECORD OR MAY BE DERIVED FROM THE DISCOVERY OF NEW AND IMPORTANT MATTER OR FRESH FACTS, AS HELD IN KALYANJ I MAVJI & CO. VS. CIT, 102 ITR 287 (S|C). FURTHER, SHE HELD THAT THE RELIANCE PLACED BY THE ASSESSEE IN THE CASE OF SPL S SIDHARTHA LTD. (SUPRA) AND ORIENT CRAFT LTD. (SUPRA) ARE NOT FROM JURISDICTIONAL HIGH COURTS, THEREFORE, ARE NOT APPL ICABLE TO THE CASE OF THE ASSESSEE. IN THIS WAY, SHE DISMISS ED THE APPEAL OF THE ASSESSEE UPHOLDING THE REOPENING UNDE R SECTION 5 147 OF THE ACT AND CONFIRMED THE ADDITION MADE BY T HE ASSESSING OFFICER. 6. AGGRIEVED BY THE ORDER OF THE LEARNED CIT (APPE ALS), THE ASSESSEE HAS COME UP IN APPEAL BEFORE US RAISIN G THE FOLLOWING GROUNDS OF APPEAL : 1. THAT THE LEARNED CIT(A), IS NOT JUSTIFIED IN NOT AL LOWING THE 100% DEDUCTION BY NOT ACCEPTING THE YEAR OF 'SUBSTANTIAL EXPANSION' AS 'INITIAL YEAR' THUS NOT INTERPRETING THE PROVISIONS OF SECTION 80-IC IN ITS T RUE AND LIBERAL SPIRIT BEING AN INCENTIVE PROVISION. 2. THAT THE LEARNED CIT(A), IS NOT JUSTIFIED IN MISCON STRUING THE PROVISIONS OF SECTION 80-IC OF THE INCOME-TAX ACT BY NOT FOLLOWING O R DISTINGUISHING THE JUDGMENT OF HON'BLE DELHI TRIBUNAL IN THE CASE OF TIRUPATI LPG INDUSTRIES LTD. NEW DELHI VS. DCIT, DEHRADU N IN ITA NO. 991/DEL/2013, DATED 29.01.2014. 3. THAT LEARNED CIT(A) IS UNJUSTIFIED BY NOT FOLLOWI NG THE LAW LAID DOWN BY THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD., [1973] 88 ITR 192 (SC) THAT IF TWO REASONABLE CONSTRUCTIONS OF A TAXING PROVISION ARE POSSIBLE, THAT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED. 4. THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IN UPHO LDING THE REOPENING OF THE CASE U/S 147 WITHOUT THERE BEING ANY FRESH OR COGENT MATE RIAL AND ALSO BY NOT CONSIDERING THE JUDGMENTS SAYING THESE ARE NOT OF T HE JURISDICTIONAL COURTS. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND T HE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD AND DISPOSED OFF. 7. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT GROUND NOS.1 TO 3 RELATE TO THE ADDI TION MADE 6 ON ACCOUNT OF DEDUCTION UNDER SECTION 80IC OF THE A CT BEING GIVEN @ 25% AS AGAINST 100% CLAIMED BY THE ASSESSEE . HE FAIRLY SUBMITTED BEFORE US THAT THE ISSUE AS ON DAT E IS COVERED AGAINST THE ASSESSEE BY A LATEST ORDER OF THE ITAT, CHANDIGARH BENCH IN THE CASE OF HYCRON ELECTRONICS & OTHERS I N ITA NO.798/CHD/2012 DATED 27.5.2015, WHEREBY IT HAS BEE N HELD THAT THE ASSESSEE HAVING BEEN ALREADY AVAILED FULL DEDUCTION @ 100% IN EARLIER FIVE YEARS IS ELIGIBLE TO GET ONLY 25% OF DEDUCTION IN THE CURRENT YEAR. HOWEVER, THE LEARNE D COUNSEL FOR THE ASSESSEE MADE DETAILED SUBMISSIONS ON THE L EGAL GROUND RAISED BY HIM AS PER GROUND NO.4. IT WAS S UBMITTED BEFORE US THAT REOPENING HAS BEEN MADE AFTER THE OR IGINAL ASSESSMENT HAVING BEEN MADE UNDER SECTION 143(1) OF THE ACT. THE ASSESSING OFFICER DID NOT HAVE ANY TANGIBLE MAT ERIAL COMING INTO HIS POSSESSION AND ONLY ON THE BASIS OF THE RECORD ALREADY EXISTING, HE HAS REOPENED THE ASSESSMENT. NOWHERE FORM THE REASONS RECORDED OR OTHERWISE IT IS COMING THAT THE ASSESSING OFFICER HAS BROUGHT SOME INFORMATION OR S OME MATERIAL TO FORM THE BELIEF THAT THE INCOME HAS ESC APED. HE RELIED UPON THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF ORIENT CRAFT LTD. (SUPRA) AND ALSO SPL S SIDDHARTHA LTD. (SUPRA). FURTHER, DURING THE COUR SE OF HEARING, AN ORDER OF THE ITAT, MUMBAI BENCH IN THE CASE OF DELTA AIR LINES, INC VS. ITO IN ITA NO.3476/MUM/200 8 DATED 30.11.2012 WAS ALSO PLACED ON RECORD. BY THE HELP OF THIS ORDER, HE SUBMITTED THAT EVEN IN CASES ORIGINALLY D ONE UNDER SECTION 143(1) OF THE ACT, NO REOPENING UNDER SECTI ON 147 OF THE ACT CAN BE MADE BY THE ASSESSING OFFICER WITHOU T THERE 7 BEING ANY TANGIBLE MATERIAL COMING INTO HIS POSSESS ION. IN THIS CASE, RELIANCE WAS PLACED ON A THIRD MEMBER DE CISION OF THE ITAT, MUMBAI BENCH IN THE CASE OF TELCO DADAJE E DHACKJEE LTD. VS. DCIT IN ITA NO.4613/MUM/2005 DATE D 12.5.2010 TO CONTEND THAT IN THE ABSENCE OF ANY SUC H NEW MATERIAL, REOPENING OF AN ASSESSMENT ITSELF WAS BAD IN LAW AND ASSESSMENT MADE IN PURSUANCE THEREOF IS LIABLE TO BE CANCELLED BEING INVALID. RELIANCE WAS ALSO PLACED ON THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD., 320 ITR 561 (SC). 8. THE LEARNED D.R. DURING THE COURSE OF HEARING SUBMITTED THAT THE ISSUE ON MERITS IS COVERED AGAIN ST THE ASSESSEE BY THE ORDER OF THE ITAT, CHANDIGARH BENCH IN THE CASE OF HYCRON ELECTRONICS (SUPRA). FURTHER, IT WAS ARGUED THAT EVEN IN THE CASES WHERE ORIGINAL ASSESSMENT HA S BEEN MADE UNDER SECTION 143(1) OF THE ACT, THERE IS NO B AR FOR THE ASSESSING OFFICER TO REOPEN THE CASES BY ISSUE OF N OTICE UNDER SECTION 148 OF THE ACT. THE ONLY REQUIREMENT IS TO RECORD THE REASON, WHICH IN THIS CASE, HAS DULY BEEN COMPLIED WITH. IN THE CASES WHERE ORIGINAL ASSESSMENT IS MADE SUMMARI LY SINCE THERE IS NO ORIGINAL OPINION, THE ISSUE OF CHANGE O F OPINION DOES NOT ARISE. THEREFORE, IT WAS SUBMITTED THAT T HE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF KELVINATOR OF INDIA LTD. (SUPRA) IS NOT APPLICABLE IN THE PRESENT CASE. FURTHER RELIANCE WAS PLACED ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. RAJESH JHAVERI (2007 ) 291 ITR 500 (SC). IN THIS WAY, IT WAS CONTENDED THAT RE-AS SESSMENT 8 DONE BY THE ASSESSING OFFICER UNDER SECTION 143(3) R.W.S. 147 OF THE ACT IS AS PER LAW. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SINCE THE ASSESSEE HAS RAISED LEGAL ISSUES AND LENGTHY ARGUMENTS WERE MADE ON THI S BEHALF FROM BOTH THE SIDES, WE WILL ADJUDICATE THE SAME FI RST. 10. FROM THE PERUSAL OF REASONS RECORDED AND MATER IAL AVAILABLE ON RECORD, WE DO NOT COME ACROSS ANY TANG IBLE MATERIAL COMING IN THE NOTICE OF THE ASSESSING OFFI CER FOR FORMATION OF BELIEF. THE WORDS USED TIME AND AGAIN IN THE REASONS RECORDED ARE IT IS NOTICED THAT. NO REF ERENCE TO ANY OTHER MATERIAL IS GIVEN. EVEN AT THE TIME OF HEARI NG BEFORE US, NO SUCH MATERIAL COULD BE BROUGHT TO OUR NOTICE. T HEREFORE, ADMITTEDLY, WHAT TRIGGERED THE ASSESSING OFFICER TO REOPEN THE CASE AFTER ISSUING INTIMATION UNDER SECTION 143(1) OF THE ACT, IS NOT COMING OUT OF RECORDS. IN VIEW OF THIS, WE PROCEED TO DISCUSS WHETHER THE PROVISIONS OF SECTION 147 OF TH E ACT READ WITH SECTION 148 OF THE ACT ARE STILL APPLICABLE TO THE PRESENT CASE OR NOT. 11. IT IS A TRITE LAW BY NOW, THAT THE ONLY CONDIT ION FOR THE ASSESSING OFFICER TO REOPEN THE CASE IS THAT FO R WHATEVER REASONS HE HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT, IT CONFERS JURISDICTION ON HIM TO OPEN THE ASSESSMENT. THE PHRASE REASON TO BELIEVE HAS BE EN DEFINED IN THE LANDMARK JUDGMENT OF THE HON'BLE APEX COURT IN THE 9 CASE OF SHEO NATH SINGH VS. ACIT (1971) 82 ITR 147 , IN FOLLOWING WORDS : THE WORDS REASON TO BELIEVE SUGGEST THAT THE BEL IEF MUST BE OF AN HONEST AND REASONABLE PERSON BASED UPON REASONABLE GROUNDS AND THAT THE INCOME TAX OFFICER MAY ACT ON DIRECT OR CIRCUMSTANTIAL EVIDENC E BUT NOT ON MERE SUSPICION, GOSSIP OR RUMOUR. 12. THIS PROPOSITION HAS BEEN AFFIRMED BY A CATENA OF DECISIONS BY THE HON'BLE SUPREME COURT BOTH PRIOR T O IT AND ALSO LATER ON, IN DIFFERENT WORDS. 13. THERE CAN BE NO DISPUTE THAT THE MAIN INGREDIE NTS FOR INITIATING THESE PROVISIONS ARE PRESENCE OF MAT ERIAL AND LIVE LINK BETWEEN THE MATERIAL AND THE BELIEF FORME D BY THE ASSESSING OFFICER, WHICH MAKES THE REASONABLE BELI EF AS PROPOUNDED IN THE PROVISIONS ITSELF. COMING TO TH E REASON TO BELIEVE, WE MAY BE GUIDED BY ANOTHER JUDGMENT OF T HE HON'BLE APEX COURT IN THE CASE OF KELVINATOR INDIA (SUPRA) . THE CASE WAS RENDERED SURELY IN THE CONTEXT OF ORIGINAL ASSE SSMENT HAVING BEEN MADE UNDER SECTION 143(3) OF THE ACT, H OWEVER, THE INTERPRETATION MADE WAS THAT OF THE PHRASE REA SON TO BELIEVE, WHICH IS APPLICABLE EQUALLY TO THE CASES MADE UNDER SECTION 143(1)(A) AS WELL AS 143(3) OF THE ACT. IN THE CASE OF KELVINATOR INDIA (SUPRA) WHILE DEALING WITH THIS, T HE HON'BLE APEX COURT OBSERVED AS UNDER : 10 AFTER 1 ST APRIL, 1989, AO HAS POWER TO REOPEN, PROVIDED THERE IS TANGIBLE MATERIAL TO COME TO THE CONCLUS ION THAT THERE IS ESCAPEMENT OF INCOME FROM ASSESSMENT. REA SONS MUST HAVE A LIVE LINK WITH THE FORMATION OF THE BEL IEF. 14. FURTHER, WE ARE IN TOTAL AGREEMENT WITH THE ARGUMENT OF THE LEARNED D.R. THAT IN CASES ORIGINAL LY MADE UNDER SECTION 143(1(A) OF THE ACT, NO QUESTION OF D IFFERENCE OF OPINION ARISES AS IN THAT CASE, EVERYTHING DONE BY THE ASSESSING OFFICER TO REOPEN THE CASES UNDER SECTION 143(1)(A) OF THE ACT WOULD BECOME CHANGE OF OPINION AND NO CA SE UNDER SECTION 143(1)(A) OF THE ACT COULD BE REOPENED, WHI CH CANNOT BE THE INTENTION OF THE LEGISLATURE. HOWEVER, IN O UR OPINION, EVERY CASE MADE UNDER SECTION 143(1)(A) OF THE ACT CAN BE REOPENED ON ANY PRETEXT, WHATSOEVER, CAN ALSO NOT B E THE INTENTION OF LEGISLATURE. THERE IS A FINE LINE OF DISTINCTION BETWEEN THESE CASES. THIS IS A VERY LOGICAL AND P LAUSIBLE INTERPRETATION, THAT IN CASES UNDER SECTION 143(1)( A) IF THE CASE IS REOPENED, IT CANNOT BE CONSIDERED BEING MAD E ON CHANGE OF OPINION, SINCE THERE WAS FIRSTLY NO OPINI ON THEN HOW CAN THERE BE A CHANGE OF OPINION. THIS VIEW HAS A LSO BEEN PROPOUNDED BY THE HON'BLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI (SUPRA). HOWEVER, COMING TO THE NEX T ASPECT, WHETHER THE ASSESSING OFFICER CAN REOPEN ANY CASE M ADE UNDER SECTION 143(1)(A), WITHOUT THERE BEING ANY MA TERIAL IN HIS POSSESSION TO FORM A BELIEF. EVEN IN THE CASE OF RAJESH JHAVERI (SUPRA), THE HON'BLE SUPREME COURT HAS HELD THAT : 11 18. SO LONG AS THE INGREDIENTS OF S. 147 ARE FULFILLE D, THE AO IS FREE TO INITIATE PROCEEDING UNDER S. 147 AND FAILURE TO TAKE STEPS UNDER S. 143(3) WILL NOT RENDER THE AO POWERLESS TO INITIATE REASSESSMENT PROCEEDINGS EVEN WHEN INTIMATION UNDER S . 143(1) HAD BEEN ISSUED. 15. THE LOGICAL INTERPRETATION IS THAT IN ALL CASE S, FOR REOPENING, THE BASIC INGREDIENTS OF SECTION 147 OF THE ACT ARE TO BE FULFILLED. 16. WE RESPECTFULLY ARE GUIDED BY THE SAID PROPOSI TION LAID DOWN BY THE HON'BLE SUPREME COURT, WHILE TRYIN G TO ANALYSIS THE PRESENT CASE. 17. THE COMBINED READING OF THE TWO JUDGMENTS OF T HE HON'BLE APEX COURT IN THE CASE OF RAJESH JHAVERI ( SUPRA) AND KELVINATOR INDIA (SUPRA) TO OUR HUMBLE OPINION, INF ERS THAT THOUGH IN CASE OF SECTION 143(1)(A) OF THE ACT, ANY ARGUMENT OF IT BEING ILLEGAL BECAUSE OF CHANGE OF OPINION IS NO T SUSTAINABLE, HOWEVER, THERE HAS TO BE SOME TANGIBLE MATERIAL IN POSSESSION OF THE ASSESSING OFFICER TO REOPEN SU CH CASES. IN THE PRESENT CASE, THE ASSESSEE FILED RETURN UND ER SECTION 139 (1) AS ON 30.7.2011, INTIMATION UNDER SECTION 143(1)(A) OF THE ACT WAS ISSUED AS ON 23.7.2012 AND THE NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED AS ON 14.6.2013. WHAT CAME INTO HIS POSSESSION BETWEEN THESE TWO DATES, W HICH TRIGGERS HIM TO FORM A BELIEF. THE COPY OF REASON AS REPRODUCED BY THE ASSESSING OFFICER, ALSO FILED BY THE ASSESSEE IN HIS PAPER BOOK, DOES NOT REVEAL ANY SUCH MATERIA L COMING INTO HIS POSSESSION. EVEN THE ORDER OF THE DELHI B ENCH OF THE 12 ITAT IN THE CASE OF TIRUPATI LPG INDUSTRIES LTD. (S UPRA) WAS ALSO RENDERED AFTER THE RECORDING OF REASONS BY THE ASSESSING OFFICER, WHICH IS OTHERWISE ALSO IN ASSESSEES FAVO UR. 18. THE RELIANCE PLACED IN THIS CONTEXT, BY THE LE ARNED COUNSEL FOR THE ASSESSEE ON THE ORDER OF THE THIRD MEMBER DECISION IN THE CASE OF TELCO DADAJEE DHACKJEE LTD . (SUPRA) IS ALSO NOT OUT OF PLACE, WHEREBY IN VERY CLEAR TERMS, IT HAS BEEN HELD THAT EVEN THOUGH THE ORIGINAL ASSESSMENT WAS C OMPLETED UNDER SECTION 143(1) OF THE ACT, NO REOPENING CAN B E DONE IN THE ABSENCE OF ANY TANGIBLE MATERIAL. 19. THE RELIANCE PLACED BY THE LEARNED D.R. ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF R AJESH JHAVERI (SUPRA) IS NOT APPLICABLE IN THE PRESENT CA SE, AS EXPLAINED EARLIER, IT IS NOT A CASE WHERE THE REOPE NING IS CONTENDED TO BE BAD IN LAW FOR CHANGE OF OPINION, R ATHER THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSING OF FICER DOES NOT HAVE ANY TANGIBLE MATERIAL TO FORM BELIEF, WHIC H IS ONE OF THE MAIN INGREDIENTS FOR HAVING REASON TO BELIEVE . 20. ANOTHER ASPECT IN THESE KIND OF CASES IS THAT IF IT IS CONSTRUED THAT REOPENING UNDER SECTION 147 OF THE A CT CAN BE DONE IN CASES WHERE ORIGINAL ASSESSMENT WAS MADE ON LY UNDER SECTION 143 (1)(A) OF THE ACT WITHOUT THERE BEING A NY TRIGGER COMING INTO THE POSSESSION OF THE ASSESSING OFFICER , SOME VERY WEIRD SITUATIONS MAY ARISE IN CONSEQUENCE. THE I NCOME TAX ACT IS A VERY STRUCTURED LAW, WHEREBY ALL THE CHAPT ERS, SECTIONS, SUB-SECTIONS ARE MADE IN A VERY WELL DEFI NED 13 CLASSIFIED MANNER. LIMITATIONS HAVE BEEN PROVIDED AT PLACES, WHEREVER REQUIRED. A TIME LIMIT IS FIXED FOR THE I SSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT FOR CASES COMING UN DER SCRUTINY, THESE ARE THE CASES WHERE THE ASSESSING O FFICER CHOOSES TO PROCESS THE RETURNS FILED BY ASSESSES. IF THE ASSESSING OFFICERS ARE GIVEN FREE HAND TO REOPEN AN Y OF THE CASES OF ASSESSEE UNDER SECTION 143(1)(A) OF THE AC T WITHOUT THERE BEING ANY TRIGGER IN THEIR POSSESSION. THE PROVISIONS OF NOTICE UNDER SECTION 143(2) OF THE ACT WILL BECOME REDUNDANT OR RATHER THE PROVISIONS OF NOTICE UNDER SECTION 14 3(2) AND NOTICE UNDER SECTION 148 OF THE ACT WILL OVERLAP. THERE WILL NOT BE ANY EMBARGO PLACED BEFORE THE ASSESSING OFFI CERS TO SCRUTINIZE THE CASE IN TERMS OF TIME LIMIT. THEY C AN OPEN THE CASE BY ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT (WITHIN THE PERIOD PRESCRIBED UNDER THE SAID SECTION) OR EV EN LATER, BUT BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT IN PLACE OF 143(2) OF THE ACT. THIS CAN NEVER BE THE INTENTION OF LEGISLATURE. THE SANCTITY OF EACH AND EVERY PROVIS ION OF THE STATUTE HAS TO BE MAINTAINED AT ALL COSTS. 21. BEFORE PARTING, WE WOULD ALSO LIKE TO DEAL WIT H THE JUDGMENT IN THE CASE OF KALYANJI MAVJI & CO. (SUPRA ), RELIED UPON BY THE LEARNED CIT (APPEALS). THE SAID JUDGM ENT IS CLEARLY DISTINGUISHABLE ON FACTS, AS IN THAT CASE, INFORMATION CAME IN POSSESSION OF THE ASSESSING OFFICER AFTER T HE ORIGINAL ASSESSMENT BY FRESH FACTS REVEALED IN THE LATER ASS ESSMENT YEAR. IN THE SAME CASE, THE HON'BLE APEX COURT HAS IN VERY CLEAR TERM, ALSO HELD THAT : 14 IT IS OBVIOUS THAT WHERE ITO GETS NO SUBSEQUENT INFORMATION, BUT MERELY PROCEEDS TO REOPEN THE ORIG INAL ASSESSMENT WITHOUT ANY FRESH FACTS OR MATERIALS OR WITHOUT ANY ENQUIRY INTO THE MATERIALS WHICH FORM P ART OF THE ORIGINAL ASSESSMENT, S.34(1)(B) WOULD HAVE NO APPLICATION. 22. FURTHER, WHILE NOT RELYING ON THE JUDGMENTS OF HON'BLE DELHI HIGH COURT, THE LEARNED CIT (APPEALS) HAS NOT BEEN ABLE TO CITE ANY JUDGMENT OF THE HON'BLE JURIS DICTIONAL HIMACHAL PRADESH HIGH COURT, TO THE CONTRARY. IN VIEW OF THE ABOVE, RELYING ON THE JUDGMENT OF HON'BLE SUPREME C OURT IN THE CASE OF RAJESH JHAVERI (SUPRA) AND KELVINATOR OF INDIA LTD. (SUPRA), WE HOLD THAT THE PROCEEDINGS INITIATE D IN THIS CASE BY THE ASSESSING OFFICER UNDER SECTION 147 OF THE ACT ARE NOT AS PER LAW AND ARE HEREBY QUASHED. 23. SINCE, WHILE ADJUDICATING GROUND NO.4, WE HAVE ALREADY QUASHED THE PROCEEDINGS INITIATED BY THE AS SESSING OFFICER, WE DO NOT FIND ANY NEED TO ADJUDICATE OTHE R GROUNDS RAISED BY THE ASSESSEE. 24. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.9.2015. SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACOUNTANT MEMBER DATED : 14 TH SEPTEMBER, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 15