ADIT, DEHRADUN vs. M/S. DAELIM INDUSTRIAL CO. LTD., DEHRADUN

21/08/2023 सुनवाईक�तारीख/ Date of hearing : 31/10/2023 उ�ोषणाक�तारीख/Pronouncement on : आदेश / O R D E R PER C. N. PRASAD, J. M.

“i. Whether on the facts and circumstances of the case, the CIT (A) has erred in failing to appreciate that the assessee had failed to disclose fully and truly all material facts b submitting that ownership in items of supply passed outside India, whereas subsequent assessment years it was found that assessee was executing a turnkey contract and ownership in supplies was transferred only in India. ii. Whether on the facts and circumstances of the case the CIT (A) has ignored the decision of Mumbai High Court in Ms Indo- European Dreweries Ltd. where the Hon'ble High Court has held that findings during subsequent year's assessment constituted sufficient tangible material for reassessment. iii. Whether on the facts and circumstances of the case the CIT (A) has erred in ignoring the decisions of High Courts where it has been held that where AO has formed no opinion either expressly or otherwise then even if material is available on record reassessment cannot be challenged on ground of change of opinion. iv. Whether on the facts and circumstances of the case the CIT (A) has erred in relying upon the order of the Hon'ble Court of Uttarakhand quashing the initiation of proceedings u/s 147 when it is distinguishable on facts. v. Whether on the facts and circumstances of the case the CIT (A) has ignored the fact the Department has filed a special petition before divisional bench of the court in the case of BJ Services and 22 others which is still pending. vi. Whether On the facts and circumstances of the case the CIT (A) has erred in not adjudicating the findings on the merits of the case.”

3.3 The Ld. AR has averred that the reopening was done on the basis of a change of opinion in a situation where no new facts have come to light. Also the original assessment was framed u/s 143(3) of the Act and there are a catena of case laws on the issue that once an order is framed u/s 143(3) of the Act then it has to be presumed that all material facts were considered by the AO. The Ld. AR has relied upon a number of case laws to canvass the point that reopening in the instant case was merely due to a change of opinion and not because some new facts or information was in the possession of the AO. It is observed that the facts of this case are similar to the facts adjudicated in the case of B.J. Services Company Middle East Ltd. & Ors. reported in 339 ITR 169 (UK). The observations in para 46 and 47 of this judgment are particularly relevant for this matter wherein it has been stated that the ground reality having remained unchanged from the time of the earlier assessment till the time of reopening leading to the initiation of proceedings u/s 147/148 of the Act not having the support of law since they were initiated merely on a reappraisal of the same set of facts. Since the facts of this case are identical with the B.J. Services (Supra) case it is held that the Ld. A.O's assumption of jurisdiction itself was illegal and thus any proceedings that follow this action also cannot be supported and are hereby quashed.

Order pronounced in the open court on : 31/10/2023.