ITO, Ward - 40(2), Kolkata V. Smt. Uma Chakraborty, Kolkata

MA 220/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4586 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-08-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 30-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SUKUMAR MONDAL
• Keywords: Depreciation; Audit objection; Reasonable cause; Difference of opinion; Corroborative evidences; Assessment record; Tax effect; Reason to believe; Change of opinion; Reassessment proceedings; TDS
• Section: 143(3); 40(a)(ia); 194C; 147; 148; 263; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI S.S. GODARA, JM &DR. A.L.SAINI, AM M.A. NO.220/KOL/2018 (ARISING OUT OF ./ITA NO.25/KOL/2017) ( / ASSESSMENT YEAR: 2011-12) ITO, WARD-40(2), KOLKATA VS. SMT. UMA CHAKRABORTY 11/1, TEMER LANE, KOLKATA-700009. ./ ./PAN/GIR NO.: AEPPC 7708 C (ASSESSEE) .. (REVENUE) ./ITA NO.25/KOL/2017 ( / ASSESSMENT YEAR: 2011-12) ITO, WARD-40(2), KOLKATA VS. SMT. UMA CHAKRABORTY 11/1, TEMER LANE, KOLKATA-700009. ./ ./PAN/GIR NO.: AEPPC 7708 C (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI BAIJ NATH SINGH, JCIT, SR. DR RESPONDENT BY : SHRI SUKUMAR MONDAL, CA / DATE OF HEARING : 09/08/2019 /DATE OF PRONOUNCEMENT : 28/08/2019 / O R D E R PER DR. A. L. SAINI: THIS IS A MISCELLANEOUS APPLICATION FILED BY THE R EVENUE PRAYING TO RECALL THE ORDER OF THE TRIBUNAL DATED 01/08/2018. 2. THE CASE OF THE REVENUE IN THIS MISCELLANEOUS A PPLICATION IS THAT THE ASSESSEES CASE WAS REOPENED U/S 147 OF THE ACT BECAUSE OF AU DIT OBJECTION. AUDIT OBJECTION IS ONE OF THE EXCEPTION WHICH DOES NOT APPLY TO CBD T CIRCULAR NO. 3/2018 DATED SMT. UMA CHAKRABORTY MA NO. 220/KOL/2018 (ARISING OUT OF I.T.A. NO. 25/KOL/2017) ITA NO. 25/KOL/2017 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 2 22 2 11.07.2018 FOR LOW TAX EFFECT. THE AUDIT OBJECTION WAS THAT THE ASSESSEE HAS NOT DEDUCTED TAX AT SOURCE AGAINST THE PAYMENT OF ROYA LTY, COVER DESIGN & ILLUSTRATIONS AND PRINTING & BINDING CHARGE. 3. WE HEARD BOTH THE PARTIES AND CAREFULLY GONE THR OUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON. WE HAVE GONE THROUGH THE AUDIT OBJECTI ON AND WE NOTE THAT THE ASSESSMENT WAS REOPENED BY THE ASSESSING OFFICER U/ S 147 / 143(3) OF THE ACT TO DEAL WITH AUDIT OBJECTIONS OF THE DEPARTMENT AND TH E ADDITION WAS MADE BY THE ASSESSING OFFICER BASED ON THE AUDIT OBJECTION. SIN CE THE ADDITION WAS MADE BY THE ASSESSING OFFICER BASED ON THE AUDIT OBJECTION THEREFORE WE NOTE THAT IT FALLS UNDER THE EXCEPTION IN CLAUSE 10(C ) OF THE CBDT CI RCULAR NO. 3/2018 DATED 11.07.2018 THEREFORE, WE THINK FIT AND APPROPRIATE THAT IT IS A REASONABLE CAUSE TO RECALL THIS ORDER AND THEREFORE, WE RECALL THE ORDE R OF TRIBUNAL DATED 01.08.2018. 4. WE ALLOW THE MISCELLANEOUS APPLICATION OF THE R EVENUE. 5. WITH THE CONSENT OF BOTH THE PARTIES AND AFTER A LLOWING THE MISCELLANEOUS APPLICATION OF THE REVENUE, THE RELATED APPEAL ITSE LF HAS BEEN HEARD TODAY I.E. 9.8.2019 , THEREFORE NOW WE ADJUDICATE THE MAIN AP PEAL IN ITA NO. 25/KOL/2017 FOR A.Y. 2011-12. 6. THE CAPTIONED APPEAL FILED BY THE REVENUE, PERTA INING TO ASSESSMENT YEAR 2011- 12, IS DIRECTED AGAINST THE ORDER PASSED BY THE COM MISSIONER OF INCOME TAX (APPEAL)-12, KOLKATA, WHICH IN TURN ARISES OUT OF A N ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 147 / 143(3) OF THE INCO ME TAX ACT, 1961 (IN SHORT THE ACT) DATED 06/10/2015. 7. BRIEF FACTS QUA THE ISSUE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 05.03.2012 WHICH WAS ASSESSED BY THE DEPARTMENT U/S 143(3) OF THE ACT DETERMINING TOTAL INCOME AT RS. 21,70,230/-. SUBSEQ UENTLY, IT WAS NOTED BY THE ASSESSING OFFICER THAT THE ASSESSEE VIOLATED THE PR OVISION OF SECTION 40A(IA) OF THE SMT. UMA CHAKRABORTY MA NO. 220/KOL/2018 (ARISING OUT OF I.T.A. NO. 25/KOL/2017) ITA NO. 25/KOL/2017 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 3 33 3 ACT BY NOT DEDUCTING THE TDS AT SOURCE U/S 194C AND 194J OF THE ACT HAVING PAYMENTS MADE TO CONCERNED PARTIES IN AGGREGATE EXC EEDING THE PRESCRIBED LIMIT OF RS. 75,000/- AND RS. 30,000/- DURING THE FINANCIAL YEAR IN SPITE OF FACT THAT PAYMENTS WERE MOSTLY MADE TO INDIVIDUALS EXCEEDING TO RS. 5,000/- ACCORDINGLY, THE CASE WAS REOPENED BY INVOKING THE PROVISIONS OF SECTION 147 OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE SUB MITTED THAT THERE IS NO VIOLATION OF PROVISION OF SECTION 194C AND 194J AND THE REOPENING MADE BY THE ASSESSING OFFICER IS ON ACCOUNT OF CHANGE OF OPINIO N THEREFORE THE REOPENING MADE BY THE ASSESSING OFFICER IS BAD IN LAW. HOWEVER, TH E LD. ASSESSING OFFICER REJECTED THE CONTENTION OF THE ASSESSEE AND MADE ADDITION ON ACCOUNT OF VIOLATION OF PROVISION OF SECTION 40A(IA) OF THE ACT AT RS. 42,7 5,030/-. 8. AGGRIEVED THE STAND SO TAKEN BY THE ASSESSING OF FICER THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS QUAS HED THE REASSESSMENT PROCEEDINGS OBSERVING THE FOLLOWING: I HAVE CONSIDERED THE FACTS OF THE CASE AND THE SU BMISSIONS OF THE APPELLANT. THE APPELLANT HAS CHALLENGED THE REOPENING OF THE ASSES SMENT U/S 148 ON THE GROUNDS THAT IT WAS A CHANGE OF OPINION. IT IS A FACT THAT THE ORIGINAL ASSESSMENT ORDER WAS PASSED U/S 143(3) OF THE ACT ON 28.03.2014. THIS WA S REOPENED AS THE ASSESSING OFFICER HAD REASON TO BELIEVE THAT ..DURING THE COU RSE OF RECHECKING OF THE ASSESSMENT RECORDS, IT WAS NOTICED THAT THOUGH THE PAYMENTS MADE TO DIFFERENT PARTIES ON ACCOUNT OF AUTHORS FEE, ROYALTY, ILLUST RATION COVER DESIGNING PRINTING BINDING ETC. DID NOT EXCEED RS. 5000/- THE SAME DID EXCEED THE THRESHOLD LIMIT OF RS. 30,000/- FOR SEC. 194J AND RS. 75,000/- FOR SEC . 194C OF THE ACT DURING THE FINANCIAL YEAR RELEVANT TO A.Y. 2011-12. HENCE DEDU CTION OF TAX WAS MANDATORY IN THESE CASES WHICH THE ASSESSEE FAILED TO DO SO. THE SAME HAS BEEN TABLED BELOWTOTAL AMOUNT OF RS. 42,75,032/-. I HAVE THERE FORE REASON TO BELIEVE THAT AN AMOUNT OF RS. 42,75,032/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SEC. 147 OF ACT. ACCORDING, NOTICE U/S 148 OF THE ACT MA Y KINDLY BE ISSUED TO THE ASSESSEE. IT WAS REASSESSED U/S 147/143(3) OF THE ACT VIDE OR DER DATED 06-10- 2015 . THE APPELLANT HAS APPEALED AGAINST THIS PRIMARILY ON TH E GROUND THAT THIS WAS A CLEAR CASE OF 'CHANGE OF OPINION '. SECTION 147 IS AS UND ER :- INCOME ESCAPING ASSESSMENT.- IF THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY AS SESSMENT YEAR, HE MAY, SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 153, A SSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH H AS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURS E OF THE PROCEEDINGS UNDER THIS SECTION, OR RECOMPUTE THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER SMT. UMA CHAKRABORTY MA NO. 220/KOL/2018 (ARISING OUT OF I.T.A. NO. 25/KOL/2017) ITA NO. 25/KOL/2017 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 4 44 4 ALLOWANCE, AS THE CASE MAY BE, FOR THE ASSESSMENT Y EAR CONCERNED (HEREAFTER IN THIS SECTION AND IN SECTIONS 148 TO 153 REFERRED TO AS THE RELEVANT ASSESSMENT YEAR) : PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB -SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSM ENT YEAR, NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOUR Y EARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TA X HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON TH E PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTI CE ISSUED UNDER SUB-SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, FOR THAT ASSESSMENT Y EAR: PROVIDED FURTHER THAT THE ASSESSING OFFICER MAY ASSESS OR REASSESS SUCH INCOM E, OTHER THAN THE INCOME INVOLVING MATTERS WHICH ARE THE SUBJECT MATTERS OF ANY APPEAL, REFERENCE OR REVISION, WHICH IS CHARGEABLE TO TAX AND HAS ESCAPE D ASSESSMENT. EXPLANATION 1.-PRODUCTION BEFORE THE ASSESSING OFFI CER OF ACCOUNT BOOKS OR OTHER EVIDENCE FROM WHICH MATERIAL EVIDENCE COULD WITH DU E DILIGENCE HAVE BEEN DISCOVERED BY THE ASSESSING OFFICER WILL NOT NECESS ARILY AMOUNT TO DISCLOSURE WITHIN THE MEANING OF THE FOREGOING PROVISO. EXPLANATION 2.-FOR THE PURPOSES OF THIS SECTION, TH E FOLLOWING SHALL ALSO BE DEEMED TO BE CASES WHERE INCOME CHARGEABLE TO TAX H AS ESCAPED ASSESSMENT, NAMELY :- (A) WHERE NO RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE ALTHOUGH HIS TOTAL INCOME OR THE TOTAL INCOME OF ANY OTHER PERSO N IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR EXCEEDED THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO INCOME- TAX; (B) WHERE A RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE BUT NO ASSESSMENT HAS BEEN MADE AND IT IS NOTICED BY THE A SSESSING OFFICER THAT THE ASSESSEE HAS UNDERSTATED THE INCOMEOR HAS CLAIMED E XCESSIVE LOSS, DEDUCTION, ALLOWANCE OR RELIEF IN THE RETURN; (C) WHERE AN ASSESSMENT HAS BEEN MADE, BUT- (I) INCOME CHARGEABLE TO TAX HAS BEEN UNDERASSESSED ; OR (II) SUCH INCOME HAS BEEN ASSESSED AT TOO LOW A RAT E; OR (III) SUCH INCOME HAS BEEN MADE THE SUBJECT OF EXCE SSIVE RELIEF UNDER THIS ACT; OR (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR AN Y OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED. EXPLANATION 3. -FOR THE PURPOSE OF ASSESSMENT OR RE ASSESSMENT UNDER THIS SECTION, THE ASSESSING OFFICER MAY ASSESS OR REASSESS THE IN COME IN RESPECT OF ANY ISSUE, WHICH HAS ESCAPED ASSESSMENT, AND SUCH ISSUE COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION, N OTWITHSTANDING '' THE REASONS FOR SUCH ISSUE HAVE NOT BEEN INCLUDED IN THE REASO NS RECORDED UNDER SUB-SECTION (2) OF SECTION 148. THUS WE SEE THAT FOR REOPENING AN ASSESSMENT MADE U NDER SECTION 143(3) OF THE ACT, FOLLOWING CONDITIONS ARE REQUIRED TO BE SATISF IED:- I)THE ASSESSING OFFICER MUST FORM A TENTATIVE OR PR IMA FACIE OPINION ON THE BASIS OF MATERIAL THAT THERE IS UNDER-ASSESSMENT OR ESCAP EMENT OF INCOME; II) HE MUST RECORD THE PRIMA FACIE OPINION INTO WRI TING; (III) THE OPINION FORMED IS SUBJECTIVE BUT THE REAS ONS RECORDED OR THE INFORMATION AVAILABLE ON RECORD MUST SHOW THAT THE OPINION IS N OT A MERE SUSPICION. SMT. UMA CHAKRABORTY MA NO. 220/KOL/2018 (ARISING OUT OF I.T.A. NO. 25/KOL/2017) ITA NO. 25/KOL/2017 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 5 55 5 (IV) REASONS RECORDED AND/OR THE DOCUMENTS AVAILABL E ON RECORD MUST SHOW A NEXUS OR THAT IN FACT THEY ARE GERMANE AND RELEVANT TO THE SUBJECTIVE OPINION FORMED BY THE ASSESSING OFFICER REGARDING ESCAPEMEN T OF INCOME. (V) IN CASES WHERE THE FIRST PROVISO APPLIES, THERE IS AN ADDITIONAL REQUIREMENT THAT THERE SHOULD BE FAILURE OR OMISSION ON THE PAR T OF THE ASSESSEE IN DISCLOSING FULL AND TRUE MATERIAL FACTS. EXPLANATION TO THE SE CTION STIPULATES THAT MERE PRODUCTION OF BOOKS OF ACCOUNTS OR OTHER DOCUMENTS FROM WHICH THE ASSESSING OFFICER COULD HAVE, WITH DUE DILIGENCE, INFERRED MA TERIAL FACTS, DOES NOT AMOUNT TO -FULL AND TRUE DISCLOSURE OF MATERIAL FACTS. (THE P ROVISO IS NOT APPLICABLE WHERE REASONS TO BELIEVE FOR ISSUE OF NOTICE ARE RECORDED AND NOTICE IS ISSUED WITHIN FOUR YEARS FROM THE END OF ASSESSMENT YEAR.) IT NEED HARDLY BE SAID THAT CHANGE OF OPINION PRESU PPOSES THAT THERE WAS EARLIER A FORMATION OF AN OPINION. WHEN NO SUCH OPINION WAS F ORMED, IT WILL BE TOO FAR- FETCHED TO ASSUME THAT A CHANGE IN THAT OPINION WAS BEING EFFECTED. FURTHER, THE SAFEST AND SUREST GUIDE FOR ASCERTAINING WHETHER AN Y SUCH OPINION WAS FORMED AT THE ORIGINAL ASSESSMENT STAGE IS TO LOOK TO THE ASS ESSMENT ORDER ITSELF. WHEN IT, OF ITS OWN, DOES NOT REVEAL THAT THE MATTERS AND CONTR OVERSIES NOW SOUGHT TO BE RAISED BY WAY OF REASSESSMENT WERE AT ALL BEFORE TH E ITO OR CONSIDERED BY HIM, IT WOULD BE ENTIRELY SURMISEFUL AND, THEREFORE, NOT PE RMISSIBLE TO STILL IMPORT THEIR EXISTENCE AND CONSIDERATION. THIS CAN, HOWEVER, BE PERMISSIBLE ONLY WHERE THE ASSESSMENT RECORD OF THAT STAGE OVERWHELMINGLY BRIN GS OUT THAT THE MATTER DID COME FOR DUE CONSIDERATION AND WAS IN FACT CONSIDER ED. MERE SILENCE ON A MATTER OR ABSENCE OF DISCUSSION IN THE ORIGINAL ORDER DOES NOT IMPLY THAT THE AO ADJUDICATED UPON THE SAME ONE WAY OR THE OTHER. REA SSESSMENT PROCEEDINGS WILL BE INVALID IN CASE THE ASSESSMENT ORDER ITSELF RECO RDS THAT THE ISSUE WAS RAISED AND IS DECIDED IN FAVOUR OF THE ASSESSEE. REASSESSMENT PROCEEDINGS IN THE SAID CASES WILL BE HIT BY PRINCIPLE OF 'CHANGE OF OPINION'. REASSESSMENT PROCEEDINGS WILL BE INVALID IN CASE AN ISSUE OR QUERY IS RAISED AND ANSWERED BY THE ASSESSEE IN ORIGINAL ASSESSMENT PRO CEEDINGS BUT THEREAFTER THE ASSESSING OFFICER DOES NOT MAKE ANY ADDITION IN THE ASSESSMENT ORDER. IN SUCH SITUATIONS IT SHOULD BE ACCEPTED THAT THE ISSUE WAS EXAMINED BUT THE ASSESSING OFFICER DID NOT FIND ANY GROUND OR REASON TO MAKE ADDITION OR REJECT THE STAND OF THE ASSESSEE. HE FORMS AN OPINION. THE REASSESSMENT WILL BE INVALID BECAUSE THE ASSESSING OFFICER HAD FORMED AN OPINION IN THE ORIG INAL ASSESSMENT, THOUGH HE HAD NOT RECORDED HIS REASONS. IN THE PRESENT CASE, A READING OF THE ASSESSMENT CL EARLY REVEALS THAT THE MATTER OF ALLOWABILITY OF SECTION 40(A)(IA) OF THE ACT WAS VE RIFIED AND EXAMINED . THE RELEVANT PORTION OF THE ASSESSEMENT ORDER IS '* * * THE BOOKS OF ACCOUNTS PRODUCED BY THE ASSESSEE WERE TEST CHECKED AND VERI FIED. IT WAS FOUND THAT THE GIVEN DATA IS THE ACCUMULATED BALANCE AT THE END OF THE FINANCIAL YEAR. HENCE PROVISION OF SEC.40(A)(IA) OF THE INCOME TAX ACT 19 61 WAS NOT ATTRACTED. THE ASSESSEE PRODUCED THE SUPPORTING EVIDENCES, SUCH AS LEDGERS, BILLS, VOUCHERS AND OTHER PRIMARY BOOKS OF ACCOUNTS MAINTAINED BY THE A SSESSEE. ' FROM THE ABOVE IT IS CRYSTAL CLEAR THAT THE ISSUE O F APPLICATION OF SEC.40(A)(IA) OF THE ACT, HAS ALREADY BEEN EXAMINED IN COURSE OF ORI GINAL ASSESSMENT PROCEEDINGS AND FOUND NOT APPLICABLE IN THE INSTANT CASE. REOPE NING THE ASSESSMENT ON THE SAME ISSUE OF APPLICABILITY OF SEC.40(A)(IA) OF THE ACT , ALREADY SETTLED IN COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS IS NOTHING BUT CHAN GE OF OPINION WHICH SHOULD SMT. UMA CHAKRABORTY MA NO. 220/KOL/2018 (ARISING OUT OF I.T.A. NO. 25/KOL/2017) ITA NO. 25/KOL/2017 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 6 66 6 NOT BE SUFFICIENT AND VALID GROUND FOR INVOKING TH E PROVISION OF SECTION 147 OF THE ACT. THE OTHER QUESTION IS WHETHER IN SUCH CASES, T HE REVENUE IS WITHOUT ANY REMEDY. IN CASE THE ASSESSMENT ORDER IS ERRONEOUS A ND PREJUDICIAL TO THE INTEREST OF THE REVENUE, THEY ARE ENTITLED TO AND CAN INVOKE POWER UNDER SECTION 263 OF THE ACT. REVENUE HAD THE OPTION, BUT DID NOT TAKE RECOU RSE TO SECTION 263 OF THE ACT, INSPITE OF AUDIT OBJECTION. SUPERVISORY AND REVISIO NARY POWER UNDER SECTION 263 OF THE ACT IS AVAILABLE, IF AN ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. AN ERRONEOUS ORDER CONTRARY TO LAW THAT HAS CAUSED PREJUDICED CAN BE CORRECT, WHEN JUR ISDICTION UNDER SECTION 263 IS INVOKED. THUS WHERE AN ASSESSING OFFICER INCORRECTLY OR ERRO NEOUSLY APPLIES LAW OR COMES TO A WRONG CONCLUSION AND INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, RESORT TO SECTION 263 OF THE ACT IS AVAILABLE AND S HOULD BE RESORTED TO. BUT INITIATION OF REASSESSMENT PROCEEDINGS WILL BE INVA LID ON THE GROUND OF CHANGE OF OPINION. THERE IS A DISTINCTION BETWEEN ERRONEOUS A PPLICATION/ INTERPRETATION/UNDERSTANDING OF LAW AND CASES WHERE FRESH OR NEW FACTUAL INFORMATION COMES TO THE KNOWLEDGE OF THE ASSESSING OFFICER SUBSEQUENT TO THE PASSING OF THE ASSESSMENT ORDER. IF NEW FACTS, MATE RIAL OR INFORMATION COMES TO THE KNOWLEDGE OF THE ASSESSING OFFICER, WHICH WAS N OT ON RECORD AND AVAILABLE AT THE TIME OF THE ASSESSMENT ORDER, THE PRINCIPLE OF 'CHANGE OF OPINION' WILL NOT APPLY. THE REASON IS THAT OPINION IS FORMED ON FACT S. OPINION FORMED OR BASED ON WRONG AND INCORRECT FACTS OR WHICH ARE BELIED AND U NTRUE DO NOT GET PROTECTION AND COVER UNDER THE PRINCIPLE OF 'CHANGE OF OPINION '. FACTUAL INFORMATION OR MATERIAL WHICH WAS INCORRECT OR WAS NOT AVAILABLE W ITH THE ASSESSING OFFICER AT THE TIME OF ORIGINAL ASSESSMENT WOULD JUSTIFY INITI ATION OF REASSESSMENT PROCEEDINGS. THE REQUIREMENT IN SUCH CASES IS THAT THE INFORMATION OR MATERIAL AVAILABLE SHOULD RELATE TO MATERIAL FACTS. THE EXPR ESSION 'MATERIAL FACTS' MEANS THOSE FACTS WHICH IF TAKEN INTO ACCOUNT WOULD HAVE AN ADVERSE AFFECT ON THE ASSESSEE BY A HIGHER ASSESSMENT OF INCOME THAN THE ONE ACTUALLY MADE. THEY SHOULD BE PROXIMATE AND NOT HAVE REMOTE BEARING ON THE ASSESSMENT. THE OMISSION TO DISCLOSE MAY BE DELIBERATE OR INADVERTE NT. THE QUESTION OF CONCEALMENT IS NOT RELEVANT AND IS NOT A PRECONDITI ON -WHICH CONFERS JURISDICTION TO REOPEN THE ASSESSMENT. CORRECT MATERIAL FACTS CA N BE ASCERTAINED FROM THE ASSESSMENT RECORDS ALSO AND IT IS NOT NECESSARY THA T THE SAME MAY COME FROM A THIRD PERSON OR SOURCE, I.E., FROM SOURCE OTHER THA N THE ASSESSMENT RECORDS. HOWEVER, IN SUCH CASES, THE ONUS WILL BE ON THE REV ENUE TO SHOW THAT THE ASSESSEE HAD STATED INCORRECT AND WRONG MATERIAL FACTS RESUL TING IN THE ASSESSING OFFICER PROCEEDING ON THE BASIS OF FACTS, WHICH ARE INCORRE CT AND WRONG. THE REASONS RECORDED AND THE DOCUMENTS ON RECORD ARE OF PARAMOU NT IMPORTANCE AND WILL HAVE TO BE EXAMINED TO DETERMINE WHETHER THE STAND OF THE REVENUE IS CORRECT. THUS IF A SUBJECT MATTER, ENTRY OR CLAIM/DEDUCTION IS NOT EXAMINED BY AN ASSESSING OFFICER, IT CANNOT BE PRESUMED THAT HE MUST HAVE EX AMINED THE CLAIM/DEDUCTION OR THE ENTRY, AND THEREFORE, IT IS THE CASE OF 'CHANGE OF OPINION'. WHEN AT THE FIRST INSTANCE, IN THE ORIGINAL ASSESSMENT PROCEEDINGS, N O OPINION IS FORMED, PRINCIPLE OF 'CHANGE OF OPINION' CANNOT AND DOES NOT APPLY. T HERE IS A DIFFERENCE BETWEEN CHANGE OF OPINION AND FAILURE OR OMISSION THE ASSES SING OFFICER TO FORM AN OPINION ON A SUBJECT MATTER, ENTRY, CLAIM, DEDUCTIO N. WHEN THE ASSESSING OFFICER FAILS TO EXAMINE A SUBJECT MATTER, ENTRY, CLAIM OR DEDUCTION, HE FORMS NO OPINION. IT IS A CASE OF NO OPINION. THUS IN THE PRESENT CAS E, I FIND STRENGTH IN THE SMT. UMA CHAKRABORTY MA NO. 220/KOL/2018 (ARISING OUT OF I.T.A. NO. 25/KOL/2017) ITA NO. 25/KOL/2017 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 7 77 7 SUBMISSION OF THE APPELLANT AND AGREE THAT THIS IS A CASE OF 'CHANGE OF OPINION' AND THE AO'S ACT OF REOPENING THE CASE WAS ILLEGAL AND BAD IN LAW. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE REVENU E IS IN APPEAL BEFORE US. 9. THE LD. DR HAS PRIMARILY REITERATED THE STAND TA KEN BY THE ASSESSING OFFICER WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA AND THE SAME IS NOT BEING REPEATED FOR THE SAKE OF BREVITY AND ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE HAS DEFENDED THE ORDER OF THE LD. CIT(A). 10. WE HEARD BOTH THE PARTIES AND CAREFULLY GONE TH ROUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLU DING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS AVAILABLE ON RECORD. WE NOTE THAT THE LD. CIT(A) HAS PASSED A REASONED ORDER STATING THAT THE REOPENING MADE BY THE ASSESSING OFFICER U/S 147 / 148 OF THE ACT WAS NOTHING BUT A CHANGE O F OPINION AS THE MATTER RELATING TO TAX DEDUCTION AT SOURCE U/S 40(A)(IA) OF THE ACT WHICH HAD ALREADY BEEN EXAMINED BY THE ASSESSING OFFICER DURING THE ORIGIN AL ASSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT; AND THEREFORE REOPENING IS BAD I N LAW. THAT BEING SO, WE DECLINE TO INTERFERE IN THE ORDER PASSED BY THE LD. CIT(A), HIS ORDER ON THIS ISSUE, IS HEREBY UPHELD AND THE GROUNDS OF APPEAL RAISED BY THE REVE NUE IS DISMISSED. 11. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS ALLOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28.08.201 9. SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 28/08/2019 ( SB, SR.PS ) SMT. UMA CHAKRABORTY MA NO. 220/KOL/2018 (ARISING OUT OF I.T.A. NO. 25/KOL/2017) ITA NO. 25/KOL/2017 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 8 88 8 COPY OF THE ORDER FORWARDED TO: 1. ITO, WARD-40(2), KOLKATA 2. SMT. UMA CHAKRABORTY 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES