Sri Vijaya Gimpex Mining Pvt. Ltd., CHENNAI V. ACIT, CHENNAI

ITA 931/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8642 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 11-04-2016
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: D ANAND
• Keywords: Difference of opinion; Change of opinion
• Section: 143(3); 80HHC; 148

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL S M C-A BENCH : CHENNAI . . . , [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER ] ./ I.T.A.NO.931/MDS/2016 / ASSESSMENT YEAR : 2003-04 M/S SRI VIJAYA GIMPEX MINING PVT. LTD SRIMAN CHAMBERS NO.8-2-293/K KAMALAPURI COLONY HYDERABAD 500 073 VS. THE ASSTT. COMMISSIONER OF INCOME-TAX COMPANY CIRCLE VI(2) CHENNAI [PAN AAGCS 9484 B] ( ! / APPELLANT) ( '# ! /RESPONDENT) / APPELLANT BY : SHRI D.ANAND, ADVOCATE /RESPONDENT BY : SHRI P. RADHAKRISHNAN / DATE OF HEARING : 16 - 06 - 2016 / DATE OF PRONOUNCEMENT : 18 - 0 8 - 2016 / O R D E R THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-15, CHENNA I, DATED 11.1.2016 AND PERTAINS TO ASSESSMENT YEAR 2003-04. 2. SHRI D. ANAND, LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT ON THE BASIS OF THE RETURN FILED BY THE ASSESSEE, T HE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 20.3.2006. SUBSEQUENTLY, THE ASSESSING OFFICER REOPENED THE AS SESSMENT BY ISSUING NOTICE U/S 148 OF THE ACT ON THE GROUND TH AT THE RAISING ITA NO.931/16 :- 2 -: CHARGES WERE NOT CONSIDERED FOR EXCLUSION WHILE COM PUTING THE RELIEF U/S 80HHC OF THE ACT. ACCORDING TO THE LD. COUNSEL , THE ASSESSING OFFICER BY RE-EXAMINING THE MATERIAL AVAILABLE ON R ECORD, HAS TAKEN A DIFFERENT STAND FOR THE PURPOSE OF GRANTING RELIEF U/S 80HHC OF THE ACT. IN THE ORIGINAL ASSESSMENT, THE ASSESSING OFFICER E XAMINED THE ISSUE AND ALLOWED THE CLAIM OF THE ASSESSEE. NO NEW MAT ERIAL CAME TO THE POSSESSION OF THE ASSESSING OFFICER, THEREFORE, ACC ORDING TO THE LD. COUNSEL, ONCE THE ASSESSMENT WAS COMPLETED U/S 143 (3) OF THE ACT IN THE ABSENCE OF ANY NEW MATERIAL, THE ASSESSING OFFI CER CANNOT CHANGE HIS STAND. ACCORDING TO THE LD. COUNSEL, IT AMOUNT S TO CHANGE OF OPINION. THE LD. COUNSEL PLACED HIS RELIANCE ON TH E JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS KELVINATOR OF INDI A LTD, 320 ITR 561. 3. ON THE CONTRARY, SHRI P. RADHAKRISHNAN, LD. DEPARTM ENTAL REPRESENTATIVE SUBMITTED THAT RAISING CHARGES ARE I N THE NATURE OF MISCELLANEOUS INCOME, THEREFORE, 90% OF THE SAME HA S TO BE REDUCED WHILE COMPUTING DEDUCTION U/S 80HHC OF THE ACT. T HE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT HAS NOT CONSIDER ED THE PROVISIONS OF SEC. 80HHC, THEREFORE, THE INCOME OTHERWISE CHARGEA BLE TO TAX HAS ESCAPED ASSESSMENT. HENCE, THE ASSESSING OFFICER H AS RIGHTLY REOPENED THE ASSESSMENT WHICH WAS CONFIRMED BY THE CIT(A). ITA NO.931/16 :- 3 -: 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER S IDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMI TTEDLY, THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 20.3.2006. IT IS ALSO NOT IN DISPUTE THAT NO NEW MATERIAL CAME TO TH E POSSESSION OF THE ASSESSING OFFICER AFTER COMPLETION OF ASSESSMENT U /S 143(3) OF THE ACT. THE ASSESSING OFFICER HAS ALLOWED THE CLAIM O F THE ASSESSEE IN THE ORIGINAL ASSESSMENT. THE QUESTION ARISES FOR C ONSIDERATION IS CAN THE ASSESSING OFFICER REOPEN THE ASSESSMENT WHICH W AS COMPLETED U/S 143(3) OF THE ACT IN THE ABSENCE OF ANY NEW MATERIA L CAME TO THE POSSESSION OF THE ASSESSING OFFICER? THIS TRIBUNA L IS OF THE CONSIDERED OPINION THAT ONCE THE ASSESSMENT WAS COM PLETED U/S 143(3) OF THE ACT, IN THE ABSENCE OF ANY NEW MATERI AL, THE ASSESSING OFFICER CANNOT REOPEN THE ASSESSMENT. THEREFORE, I T IS A CLEAR CASE OF CHANGE OF OPINION AS FOUND BY THE APEX COURT IN THE CASE OF KELVINATOR OF INDIA LTD (SUPRA). IN VIEW OF THE ABOVE, THIS T RIBUNAL IS UNABLE TO UPHOLD THE ORDERS OF THE LOWER AUTHORITIES. ACCORD INGLY, THE SAME ARE SET ASIDE AND THE APPEAL OF THE ASSESSEE STANDS AL LOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ITA NO.931/16 :- 4 -: ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH AUGUST, 2016, AT CHENNAI. SD/- ( . . . ! ) (N.R.S. GANESAN) / JUDICIAL MEMBER '# / CHENNAI $% / DATED: 18 TH AUGUST, 2016 RD %&'' ()'*) / COPY TO: ' 1 . / APPELLANT 4. ' + / CIT 2. / RESPONDENT 5. ),-' . / DR 3. ' +'/! / CIT(A) 6. -0'1 / GF