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Income Tax Appellate Tribunal, Hyderabad ‘B’ Bench, Hyderabad
Before: Shri Rama Kanta Panda & Shri Laliet Kumar
Per Shri Rama Kanta Panda, A.M. This appeal filed by the assessee is directed against the order dated 13.12.2019 of Learned Commissioner of Income Tax (Appeals)-8, Hyderabad relating to AY 2008-09.
The grounds raised by the assessee are as under:-
Ground I: Validity of re-opening of assessment under section 147 of the Act: 1. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in upholding the action of Assessing Officer that the assessment completed vide assessment order dated March 30, 2015 has been validly re-opened and hence assuming jurisdiction under section 147 of the Income tax Act, 1961. 2. The CIT(A) failed to appreciate and ought to have held:
2 ITA 183/Hyd/2020
(a) The appellant had made full and true disclosure of all material facts;
(b) The assessment of the appellant was completed after thorough examination of records, after making detailed enquiries and after taking into account the primary facts and material as disclosed in the return as well as in the course of assessment proceedings;
(c) While resorting to section 147, it is necessary that the Assessing Officer must have reason to believe that the income has escaped assessment;
(d) While framing the original assessment the project expenses written were allowed under section 37 of the Act;
(e) This being so, there was no reason to reopen the assessment and it amounts to nothing but a change of opinion;
(f) The appellant company had debited the project expenses written off of Rs.84,97,952/- to profit and loss account and had claimed under section 37 of the Act;
(g) Reopening U/s 147 of the Act in absence of fresh tangible material is bad-in-law and void;
(h) Reopening based on mere change of opinion is bad in law and void and (i) In absence of formation of belief that 'income has escaped assessment', reopening is bad in law.
3.The appellant therefore prays that the impugned assessment should be annulled as such.
Ground II: Not giving directions to Assessing Officer to allow claim of depreciation for all subsequent assessment years
The CIT(Appeals) has erred in not giving direction to Assessing Officer to allow claim of depreciation for all subsequent assessment years i.e., from AY 2008-09 onwards in terms of decision given by her for the assessment year under consideration.
The appellant therefore prays that the AO be directed to allow depreciation on the amount of project expenses of Rs.84,97,952/- which are held as capital in nature for all the subsequent assessment years starting from A Y 2008-09 onwards.
Ground III: The Appellant craves leave to add, alter and/or amend all or any of the foregoing grounds of appeal.
3 ITA 183/Hyd/2020 3. Facts of the case, in brief, are that the assessee is a joint venture company between Menzies Aviation Cargo (Hyderabad) Ltd., Mauritius (‘MACL’)and GMR, Hyderabad International Airport Ltd. It is engaged in the business of operation and maintenance of Air cargo Terminal at Rajiv Gandhi International Airport at Hyderabad. The assessee filed its original return of income on 29.09.2008 declaring loss of Rs.3,56,28,560/-. The AO completed the assessment u/s. 143(3) on 27.12.2010 determining the total loss at Rs.3,19,03,542/- wherein he made disallowance of depreciation of Rs.37,25,018/-.
Subsequently, the AO issued notice u/s. 148 of I.T.Act on 27.03.2014 after recording the following reasons:-
“ The assessee company filed its return of income on 29.09.2008 for the AY 2008-09 admitting a loss of Rs.3,56,28,560/-. The return was processed u/s. 143(1) of I.T.Act Assessment u/s. 143(3) was completed on 27.12.2010 determining taxable income of Rs.3,19,03,542/-. During the year an amount of Rs.84,97,952/- was debited towards project expenses written off and the same was not added back in the computation. As the same is capital n nature and liable to be disallowed u/s. 37 of the I.t.Act. This resulted in short accounting of total income of Rs.84,97,952/-. Due to failure on part of the assessee to disclosure fully and truly all material facts necessary for completion of the assessment the income has been escaped from assessment. Therefore, I have reason to believe that income chargeable to tax of Rs.84,97,952/- escaped assessment within the meaning of sec.147 of the I.T.Act, 1961.”
In response to the notice issued u/s. 148, the assessee filed its return of income on 20.06.2014 declaring loss of Rs.3,56,28,560/-. During the course of assessment proceedings, the assessee objected to the reopening of the assessment by relying on various case laws and relying on the proviso to section 147. So far as the merit of the case is concerned, the assessee submitted that details of project expenses were submitted during the course of original assessment proceedings, which were verified
4 ITA 183/Hyd/2020 and formed the part of the record. It was submitted that the company was incorporated in February, 2006 and the operation of the company was completed ready to start business on 01st March, 2008. The various expenses incurred during this period were broadly divided in two categories as under:-
Expenses related to equipment selection, procurement, installation commissioning and training for operation of equipment. 2. Expenses of revenue nature, no directly or indirectly related to capital assets. Such as: System training, staff uniform, stamp duty, advertisement, utilities, books & periodicals, staff welfare, travel, employee transport stationery, consultancy, etc.
It was submitted that all the expenses falling under the first category were capitalized with the cost of assets and rest of the expenses, having no relation in brining the asset to its state of use were written off as project expenses in P&L account. These were completely revenue in nature with no relation in brining the assets to its state of operations. The breakup of the Project Expense was filed showing the apportionment between Revenue Nature Expenses in the P&L account and Capitalized with fixed assets.
However, the AO was not satisfied with the arguments advanced by the assessee. He observed from the breakup of the project expenses that the bifurcation has been made on in adhoc basis i.e. for some items, the bifurcation between revenue and capital is made 50:50, etc. According to the AO despite several opportunities to file the working of the bifurcation, the assessee could not furnish the working of the bifurcation. Since, the assessee had claimed that the operations of the company were ready to be started by 01st March, 2008 and the subsequent expenditure was shown as revenue expenditure and since the assessee did not file any information, he held that all the head of expenditure in the project expenses breakup which were labeled
5 ITA 183/Hyd/2020 as pre-operation expenses are pre-operative. Hence, the same was to be capitalized with fixed assets. He therefore treated the project expenses written off of Rs.84,97,952/- as in the nature of capital expenditure and not allowable u/s. 37 of the I.T.Act. He accordingly disallowed the same and determined the total loss at Rs.2,34,05,590/-.
Before the ld.CIT(A), the assessee apart from challenging the addition on merit challenged the validity of reassessment. However, the ld.CIT(A) upheld the validity of reassessment proceedings by observing as under:-
“6.3 I have carefully perused the submissions made by the appellant, as well as the order of the Assessing Officer. It is the contention of the assessee's AR that there was no income liable to tax which escaped assessment. However, the reasons for reopening the case are clearly enumerated in the Assessment Order itself, and it is seen that the reopening is perfectly valid. The AO has clearly stated in the Assessment Order itself, which is reproduced in Para 6.1 above, that the reasons for reopening were sought for and the same were duly furnished to the appellant vide letter dated 23.06.2014, subsequent to which, the assessee's AR attended and furnished the information called for. I, therefore, find that the procedure for reopening has been correctly followed by the A.O., and the grounds related thereto are DISMISSED. As for the grounds taken by the assessee's AR that, since assessment in this case was already completed u/s. 143(3), the case could not have been reopened to re-examine the same issue, the AO has made a categorical observation in Para 3.3 of the Assessment Order that “The claim of the assessee that the details of project expenses was submitted during the course of original assessment proceedings was verified and from the record, it was found that no such information was filed.”
As per Explanation 1 to Sec.147,
"production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso". In view of thereof, I find that the assessment has been re-opened on perfectly valid grounds, and all grounds raised by the appellant in this regard are DISMISSED.”
So far as the merit of the addition is concerned, he partly allowed the same by observing as under:-
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“ I have carefully considered the order of the AO, as well as the submissions made by the assessee’s AR. It is seen that the assessee’s AR has himself stated, while giving description of the expenses that these were transferred to P&L A/c, from expenditure during construction period. It has been observed by the AO that the operations of the company had not started by 1st March, 2008, and this has not been controverted by the assessee's AR. The expenses are, therefore, clearly in the nature of pre-operative expenses which need to be capitalized. Infact, it is seen that the AO himself has held that these expenses are the nature of capital expenditure, but has not capitalized the same to fixed assets. Therefore, while the AO's action of not allowing the said expenses as revenue expenses is upheld, he is directed to capitalize the same to the project cost, and allow depreciation thereon. The grounds related to this issue are therefore PARTLY ALLOWED.”
Aggrieved with such order of the ld.CIT(A), the assessee is in appeal before the Tribunal.
The ld. Counsel for the assessee strongly challenged the order of the ld.CIT(A) in upholding the validity of the reassessment proceedings. Referring to page 81 to 87 of the paper book, he drew the attention of the Bench to the original assessment order passed u/s. 143(3) on 27.12.2010 wherein the AO, after verifying the details as called for, has completed the assessment determining the total loss at Rs.3,19,03,542/- as against the returned loss of Rs.3,56,28,560/-. Referring to the notice issued u/s. 148, copy of which is placed at page 88 of the paper book, and the reasons recorded at page 97 of the paper book, he submitted that the AO basically reopened the assessment on the ground that the project expenses written off amounting to Rs.84,97,952/- is capital in nature and liable to be disallowed u/s. 37 of the I.T.Act. Referring to page 47 of the paper book, he drew the attention of the Bench to Schedule -D which shows the expenditure during construction period and submitted that out of the total expenditure during construction period of Rs.2,82,21,191/- assessee has reduced interest income of Rs.79,185/-, project expenses written off at Rs.84,97,952/- and
7 ITA 183/Hyd/2020 preliminary expenses written off at Rs.27,655/- and the balance amount of Rs.1,96,16,399/- was allocated to capital assets. He submitted that the AO after verifying all these details has disallowed depreciation to the tune of Rs.37,25,018/- in the original assessment order. Referring to page 44 of the paper book, he drew the attention of the Bench to the profit and loss account for the period ended 31.03.2008 wherein the project expenses written off at Rs.84,97,952/- is clearly mentioned. Referring to the tax audit report, copy of which is placed at page 57 to 78 of the paper book, the ld. Counsel for the assessee drew the attention of the Bench to clause 17(a)at page 61 of the paper book where the auditors have categorically mentioned that amounts debited to the P&L account being expenditure of capital in nature at ‘nil’. He submitted that absolutely there is no omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for completion of the assessment.
11.1 Referring to provisions of section 114(a) of the Indian Evidence Act, he submitted that all statutory officers are deemed to have performed their duty as expected of them. He submitted that since the AO had passed the original order u/s. 143(3) on 7.12.2010 on the basis of the return of income filed along with the audited accounts and there is absolutely no failure on the part of the assessee to disclose fully and truly all material facts, therefore in view of the proviso to section 147 of the I.T.Act, the assessment could not have been reopened beyond the period of four years form the end of the relevant assessment year. He submitted that by merely mentioning that there is failure on the part of the assessee to disclose fully and truly all material facts necessary for completion of the assessment is not sufficient. The AO has to bring on record some tangible material to show as to which part of the income was not disclosed fully and truly by the assessee so as
8 ITA 183/Hyd/2020 to invoke the provision of section 148 beyond the period of four years.
11.2 Referring to the decision of Hon’ble Supreme Court in the case of ITO vs Kayathwal Estate Pvt.Ltd reported in 442 ITR 507, he drew the attention of the Bench to the following observation of the Hon’ble Supreme Court:-
“1. Having heard Shri Balbir Singh, learned ASG and in the facts and circumstances of the case more particularly at the time of Scrutiny Assessment under section 143(3), the Assessing Officer had asked for the details regarding the unsecured loan taken byI the Assessee during the year under consideration and the Assessee furnished the details as asked for and thereafter, after perusing the details so furnished by the Assessee, the Assessing Officer passed an order under section 143(3) of the Act. Therefore, it cannot be said that there was any suppression on the part of the Assessee in not disclosing true and correct facts. It is required to be noted that even the re-assessment proceeding were initiated beyond the period of four years. Under the circumstances, the High Court is absolutely justified in quashing the re-assessment proceedings and the notice under section 148 of the Income tax Act. No interference of this Court is called for in exercise of powers under article 136 of the Constitution of India.
With this, the Special Leave petition stands dismissed. of.
Pending application(s), if any, shall stand disposed of.”
Referring to the following decisions, he submitted that no notice u/s. 147 can be issued after the expire of four years from the end of the assessment year unless there is a failure on the part of the assessee to disclose fully and truly all material necessary for the assessment.
i. ACITv.Rajesh Jhaveri Stock Brokers(P.) Ltd.[2007] 291 ITR 500 (SC) ii. CITv.Foramer Finance (264 ITR 566) (SC) iii. Prashant Joshi vs. ITO (189 taxman 1) iv. RPG Transmission (359 ITR 673) (Mad HC) v.Kotarki Constructions(P.) Ltd. vs ACIT(89 taxmann.com 265)(Kar.HC) vi. Bombay Presidency Golf Club Ltd. vs. ITO (332 ITR 226) (Bom.) vii.CIT vs. Hewlett-Packard Globalsoft(P.) Ltd. (380 ITR 386 (Karn.HC) viii. Viren Sureshchandra Shah v. ACIT (63 taxmann.com 104) (Guj.HC) ix. Titanor Components Ltd. vs. ACIT(343 ITR 183) (Bom.) x. Voltas Ltd. v ACIT (2012) 349 ITR 656( Bom.)
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Referring to the following decisions, he submitted that reopening u/s. 147 of the I.T.Act in absence of fresh tangible material / failure on the part of the assessee to disclose fully and truly all material which are necessary for the assessment is bad in law and void.
i. CIT v. Chaitanya Properties (P.) Ltd (240 Taxman 659 (Kar.HC) ii. Jal Hotels Co. Limited v. ACIT (184 Taxman 1) (Del.HC) iii. Legato Systems (India) Pvt. Ltd v. DCIT (187 Taxman 294) (Del.HC) iv. Purity Techtextile (P.) Ltd. v. ACIT (325 ITR 459/189 Taxman 21) (Bom.HC) v. Asteroids Trading & Investment P. Ltd. v. DCIT (308 ITR 190), (Bom.HC) vi. Heavy Metal and Tubes Ltd. v. DCIT 364 ITR 609) (Guj.HC) vii. Gowri Gopal Hospital (P.) Ltd. v. Income-tax Officer [2015] 55 taxmann.com 335 (Hyderabad - Trib.) viii. CIT, Patiala v. State Bank of Patiala [2016] 70 taxmann.com 36 (SC)
Referring to the following decisions, he submitted that reopening based on mere change of opinion is bad in law.
i. CIT v. Kelvinator of India Ltd. (FB) (256 ITR 1) (Del.HC) ii. CIT v. Kelvinator of India Ltd (320 . ITR 561) (SC) iii. ACIT vs. ICICI Securities Primary . Dealership Ltd. (348 ITR 299) (SC) iv. Ganga Saran & Sons (P.) Ltd. v. ITO 1 [(1981) 130 ITR 1] (SC) v. Kohinoor Hatcheries (P.) 1 Ltd. v. Deputy Commissioner of Income-tax [2016] 76 taxmann.com 150 (AP.HC) vi. OHM Stock Brokers (P.) Ltd. v. 1 CIT (351 ITR 443) (bom.HC) vii. Runwal Realty (P.) Ltd.v.DCIT 1 (107 taxmann.com 284) (bom.HC) viii. Arvind Remedies (378 ITR 547) (Mad.HC) ix. Indian Bank(63 taxmann.com 145)(Mad HC) x. Godrej Agrovet Ltd. v. DCIT[2015] 56 taxmann.com 141(Bom.HC) xi. Paladiya Brothers & CO.v.ACIT[2015] 61 tamxann.com 26(Guj.) xii. NTPC Ltd. DCIT[2013] 32 taxmann.com 343 (Del.) xiii. Sita Wrold Travel (India) Ltd. v.CIT(274 ITR 186)(Del.HC)
Referring to the following decisions, he submitted that in absence of formation of belief that income has escaped assessment, reopening is bad in law. i. ITO v. Lakhmani Mewal Das (103 ITR 437) (SC) ii.Dass Friends Builders(P.) Ltd. vs.DCIT (153 taxmann 282) (Alh.HC) iii.TTK Prestige Ltd. v. DCIT (97 taxmann.com 112) (Kar.HC)
10 ITA 183/Hyd/2020 iv. Known Agro Foods(P.) Ltd. vs. ACIT 375 ITR 460 (Del.HC)
So far as, the merit of case is concerned, the ld. Counsel for the assessee submitted that even on merit also the amount has to be allowed as expenditure u/s. 37 of the I.T.Act. For the above proposition, he relied on the following decisions:-
i.ACIT vs.L.S.Cable(P) Ltd. 88 taxmann.com 616 (Del.HC) ii.Reliance Gems & Jewels Ltd. vs. DCIT3(3), Mumbai (ITA No.3855/Mum/2013) dated 28.10.2015(ITAT,Mumbai) iii.CIT vs. E-Funds International India(2007) 162 Taxman 01(del.) iv. CIT vs. ESPN Software India Pvt.Ltd. (301 ITR 368) (Del.HC) v. CITvs. Aspentech India(P.) [2010] 187 taxman 25(Delhi) vi. Bombay Steam Navigaiton co.Pvt Ltd. (56 ITR 52) (SC) vii. Empire Jute Co.Ltd. vs. CIT (124 ITR 1) (SC)
The ld. DR on the other hand heavily relied on the orders of the AO and CIT(A). So far as the validity of reassessment is concerned, he submitted that the AO in the original assessment order has neither discussed nor there was an opinion with respect to issue related to prior period expenditure as project expenses written off during the relevant assessment year and therefore the reassessment proceedings initiated in respect of this issue is not mere change of opinion and therefore, such reopening of assessment being in accordance with law has to be upheld. He also relied on the following decisions to the proposition that the reassessment proceedings initiated by the AO are valid.
i.Innovative Foods Ltd. vs. Union of India [2018] 96 taxmann.com 250(Ker.HC) ii.Instnat Holdings Ltd. vs. DCIT [2014] 44 taxmann.com 386(ITAT,Mumbai) iii.CIT vs. Nova Promoters & Finlease(P.) Ltd.[201] 18 taxmann.com 217(Del.HC)
So far as the disallowances of the project expenses written off as revenue expenses is concerned, the ld. DR submitted that the pre-operative expenses is capital expenditure in nature and
11 ITA 183/Hyd/2020 therefore, the same cannot be allowed as deduction. For the above proposition, he relied on the following decisions:
i. CIT v. Omer Khayyam Wineries (P.) Ltd. [1979] 120 ITR 859 (AP.HC) ii.Eimco K.C.P.Ltd. vs CIT [2000] 109 taxman 151(SC) (SC) iii. CIT vs. Mohan Steel Ltd. [2005] 273 ITR 479 (Alahabad HC) iv.MAC Industrial Products Ltd. ACIT,CC [2006] 101 ITD 191 (ITAT, Chennai) v.CIT vs. Reinz Talbros (P.) Ltd. [2001] 119 taxman 739 (Del.HC)
He accordingly submitted that the order of the ld.CIT(A) being in accordance with law has to be upheld and the grounds raised by the assessee should be dismissed.
We have considered the rival arguments made by both the sides, perused the orders of the AO and Ld.CIT(A) and paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the AO in the instant case completed the assessment u/s. 143(3) on 27.03.2010 determining the total loss at Rs.3,19,03,542/- as against the returned loss of Rs.3,56,28,560/- by disallowing depreciation of Rs.37,25,018/-. Subsequently, the AO issued notice u/s. 148 on 27.03.2014 after recording the reasons for reopening and such reasons have already been reproduced in the preceding paragraph. It is the submission of the ld. Counsel for the assessee that the assessment has been reopened beyond a period of four years from the end of the relevant assessment year and there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for completion of the assessment and therefore, in view of the proviso to section 147 of the I.T.Act, the AO cannot reopen the assessment beyond a period of four years from the end of the relevant assessment year. It is his submission that mere mentioning of failure on the part of the assessee to disclose fully and truly all material facts necessary for completion of the assessment is not sufficient in absence of any tangible
12 ITA 183/Hyd/2020 material before the AO to substantiate or to show as to which part of the income or which facts necessary for completion of the assessment were not disclosed by the assessee. Therefore, according to the ld. AR, the reassessment proceedings initiated by the AO are not in accordance with law and has to be quashed.
We find sufficient force in the above arguments advanced by the ld. Counsel for the assessee. A perusal of the profit and loss account, copy of which is placed at page 44 of the paper book clearly shows that the assessee has claimed project expenses written off at Rs.84,97,952/- as expenditure. Similarly, perusal of Schedule-D forming the part of balance sheet, copy of which is placed at page 47 of the paper book, shows that the assessee, after deducting the project expenses written off at Rs.84,97,952/- has allocated the amount of Rs.1,9616,399/- to various capital assets. Thus, a perusal of the above details in the audited accounts filed along with the return of income clearly shows that assessee has disclosed all the material fact necessary for completion of the assessment and there was no failure on the part of the assessee to disclose any material facts necessary for completion of the assessment. Under these circumstances, we have to see as to whether the reopening of the assessment beyond a period of four years from the end of the relevant assessment year in absence of any failure on the part of the assessee to disclose fully and truly all material facts necessary for completion of the assessment can be made when the initial assessment was completed u/s. 143(3) of the I.T.Act, 1961.
We find the Hon’ble Supreme Court in the case of ACIT vs ICICI Securities Primary Dealership Ltd reported in 320 ITR 561 has held that where accounts had been furnished by assessee when called upon and thereafter assessment was completed u/s. 143(3), subsequently on a mere re-look of said account earlier
13 ITA 183/Hyd/2020 furnished by assessee it is not permissible u/s. 147 to reopen assessment of assessee on ground that income has escaped assessment
We find the Hon’ble Madras High court in the case of CIT vs. RPG Transmission Ltd. reported in 359 ITR 653 has held that reopening was not justified where AO had actually before him all relevant material at the time of original assessment itself. The relevant observation of the Hon’ble High Court at para 30 of the order reads as under:-
" 30. We have carefully examined the assessment orders and we Find that the reasons recorded by the Assessing officer goes into various details while coming to the conclusion that the income has escaped assessment and, in our opinion, the said material and details were already available with the Assessing officer at the time of initial assessment and it does not appear to be something which has been gathered afresh or that which came to the notice of the Assessing Officer after the completion of original assessment. The payment of license fee to RPG Enterprises Ltd. was not a new fact which has emerged. on the contrary in the original returns that were filed. the factum of payment of licence fee to RPG Enterprises Ltd. was clearly disclosed and, therefore. it appears that the Assessing Officer had a mere relook at the same facts, which, in our considered opinion, is against the dictum of the apex court and the principles that emerge therefrom. An analysis of the orders of the commissioner of Income-tax ("'Appeals) as well as the Tribunal would show that the Assessing officer had actually before him all the relevant materials at the time of the original assessment itself and, therefore, the finding of fact recorded by the Commissioner of Income-tax ("'Appeals) as well as the Tribunal docs not call for any interference and we find that the reassessment was merely a relook of the earlier assessment with a change of opinion and, therefore, the reasons by which the ""Assessing Officer reopens the assessment are actually vague and fanciful. We also find that the Commissioner of Income-tax (Appeals) while dealing with the appeals arising out of the assessment had considered at length the Assessing officer’s finding and came to a conclusion that the reasoning assigned by the Assessing Officer arc not sufficient and, hence, the reopening of the assessment was bereft of materials to come to a conclusion that there were reasons to believe that the income has escaped assessment. Therefore, the order of the Commissioner of Income-tax (Appeals) overturning the order of Assessing Officer is, in our opinion, correct. We have also given our anxious consideration to the order of the Tribunal which has considered the issue at length and essentially the judgments in this regard. We are of the considered opinion that the Tribunal has correctly appreciated the finding of the Commissioner of Income- tax (Appeals) and applied the law in this
14 ITA 183/Hyd/2020 regard in coming to such a conclusion. Arguments were advanced to the effect that it was a concurrent finding of facts by the commissioner of Income-tax (Appeals) and the Tribunal and. therefore, no substantial question of law arises for consideration and we are, in the facts and circumstances of the case, in agreement with the findings of the' Tribunal and the Commissioner of Income-tax (Appeals), which are essentially final fact finding authorities. It is not as if this court in exercise of its power under section 260A of the Act cannot examine the correctness of such concurrent findings. It is, however, to be borne in mind that while examining the orders of the Tribunal and the Commissioner of Income tax (Appeals) when it is found that the findings were perverse or contrary to the law in this regard, we would have no hesitation to interfere. However, from an overall conspectus of the facts and law that emerges from the judgments referred to supra, we find no reasons to interfere with the findings of the Tribunal, which in turn confirmed the findigns of the commissioner of Income-tax(Appeals). We, therefore, answer these substantial questions of law in favor of the assessee and against the Revenue.”
The various other decisions relied on by the ld. Counsel for the assessee in the paper book also supports his case to the proposition that the reopening of the assessment in the instant case beyond a period of four years from the end of the relevant assessment year is not valid in absence of failure on the part of the assessee to disclose all material facts necessary for completion of the assessment.
In view of the above, we hold that the reopening of assessment beyond a period of four years from the end of the relevant assessment year is not in accordance with law. Mere mentioning of the words failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment by the AO, in our opinion is not sufficient in absence of showing which part of the material was not disclosed by the assessee. This view of ours finds support from the decision of Hon’ble Bombay High court in the case of Hindustan Lever Ltd. vs R.B.Wadker reported in 268 ITR 332 where the Hon’ble High Court has held that the AO must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year to establish the
15 ITA 183/Hyd/2020 vital link between the reasons and evidence. We, therefore, hold that the initiation of reassessment proceedings by the AO in the instant case is not in accordance with law and therefore, the same has to be quashed. Accordingly, we quash the reassessment proceedings and the grounds raised by the assessee on this issue are allowed.
Since the assessee succeeds on the legal ground, the grounds challenging the disallowance of the project expenses written off on merit is not being adjudicated being academic in nature. Accordingly, the appeal filed by the assessee is allowed.
In the result, the appeal filed by the assessee is allowed.
Order pronounced in the Open Court on 14th September, 2022.
Sd/- Sd/- (LALIET KUMAR) (RAMA KANTA PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER
Hyderabad, dated 14th September, 2022. Thirumalesh/sps
Copy to:
S.No Addresses 1 GMR Air Cargo and Aerospace Engineering Ltd.(Successor to GMR Hyderabad Air Cargo and Logistics Pvt Ltd.) Rajiv Gandhi International Airport, Samshabad Hyderabad-500 409 2 ITO,Ward-2(3) Signature Towers Kondapur, Kothaguda Opp. Botanical Gardens R.R.District Hyderabad-500 084 3 CIT(A)-8, Hyderabad
16 ITA 183/Hyd/2020 4 Prl.CIT-2, Hyderabad 5 DR, ITAT Hyderabad Benches 6 Guard File
By Order