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

I.T.A. No. 171/Del/2013

IN THE INCOME TAX APPELLATE TRIBUNAL [ DEHRADUN BENCH “DB” : DELHI ]

BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER A N D SHRI M. BALAGANESH, ACCOUNTANT MEMBER

आ.अ.सं./ I.T.A. No. 171/Del/2013 िनधा�रणवष�/ Assessment Year: 2003-04 ADIT, M/s. Daelim Industries बनाम International Taxation, Co. Limited, C/o. Vs. Dehradun. Gurpreet Singh & Co., 15/1, Neshvilla Road, Dehradun – 248 001. Uttarakhand. PAN No. AAACD8315N अपीलाथ� / Appellant ��यथ� / Respondent

N o n e; िनधा�रतीक�ओरसे /Assessee by : Shri Mayank Kumar, राज�वक�ओरसे / Department by Sr. D. R.; :

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.T.A. No. 171/Del/2013

referred to CIT (Appeals)] Dehradun, dated 23.10.2012 for assessment year 2003-04.

“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.”

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“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.” 5. As could be seen from the above the ld. CIT (Appeals) held that re-opening of assessment is bad in law relying on the judgement of the Hon’ble Uttarakhand High Court in the case 3

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of B.J. Services Company Middle East Ltd. & Ors. (supra). It is observed that the ld. CIT (Appeals) has not discussed thoroughly as to how there is a change of opinion in re-opening the assessment. The ld. CIT (Appeals) did not even refer to the reasons for re- opening the assessment the events occurred while completing the original assessment under section 143(3) of the Act. Nothing has been discussed by the ld. CIT (Appeals) so as to arrive at a conclusion that the re-opening of assessment is merely a change of opinion. The order is too cryptic without any reference to facts. Thus, we set aside the order of the ld. CIT (Appeals) and restore the matter to the file of the ld. CIT (Appeals) for deciding the issues afresh in accordance with law after providing adequate opportunity of being heard to the assessee.

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

Sd/- Sd/- ( M. BALAGANESH ) ( C. N. PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated : 31/10/2023. *MEHTA* आदेश क� �ितिलिप अ�ेिषत / Copy of Order Forwarded to:- 1. आवेदक / Assessee 2. राज�व / Revenue 4

I.T.A. No. 171/Del/2013

ASSISTANT REGISTRAR ITAT, New Delhi.

Date of dictation 30.10.2023 Date on which the typed draft is placed before 31.10.2023 the dictating Member Date on which the typed draft is placed before 31.10.2023 the Other Member Date on which the approved draft comes to the 31.10.2023 Sr. PS/PS Date on which the fair order is placed before 31.10.2023 the Dictating Member for pronouncement Date on which the fair order comes back to the 31.10.2023 Sr. PS/PS Date on which the final order is uploaded on 31.10.2023 the website of ITAT Date on which the file goes to the Bench Clerk 31.10.2023 Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order

I.T.A. No. 171/Del/2013