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Income Tax Appellate Tribunal, BENCH “A”, KOLKATA
Before: Hon’ble Shri N.V.Vasudevan, JM & Shri Waseem Ahmed, AM]
This is an appeal by the assessee directed against the order dated 28.01.2013 of CIT(A)-XXXII, Kolkata relating to A.Y.2003-04.
Ground No.1 raised by the assessee reads as follows :- “1. That on the facts and in the circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals) [hereinafter referred to as ‘Ld CIT(A)] has erred in confirming the action of the Assessing officer in initiating the reassessment proceeding under the provisions of section 148 of the Income-tax Act, 1961 (herein after referred to as the ‘Act ‘] and thereby passing the order under section 143(3)/147 of the Act without any new tangible material on record on the basis of which he could form a reason to believe that the income chargeable to tax for the captioned assessment year has escaped assessment and as such the order passed under the aforesaid section is bad in law, ab initio void and hence to be struck down.”
The material facts which are relevant to ground no.1 in which the Assessee has challenged the assumption of jurisdiction u/s.147 of the Act, are as follows: The Assessee is a company. For A.Y.2003-04 the assessee filed return of income declaring the total income of Rs.19,59,890/- . The return was processed u/s 143(1) on Fives Stein India Projects Pvt. Ltd. A.Yr.2003-04 14.06.2004. Notice u/s 148 of the Act was issued on 17.07.2007. The reasons recorded by the AO for initiating proceedings u/s 147 of the Act were as follows :- “In this case, the return of income was filed on 25.11.2003 declaring total income of Rs. I 9,59,8901-. The return was processed uls.143(J) of the Act on 14.06.2004. The following observations are made on perusal of the records- i. The Other Income as per Schedule-L of the accounts included Rs.9,0), 174/- as compensation for 'SICOS' projects. However, from point no.2.4 of Notes on Accounts, it appears that the assessee received Rs.14,28,800/- as refund. In other words, the assessee has shown Rs.5,27,626/- (Rs.14,28,800 - Rs. 9,01,174) less under this head. ii. The interest on Term Deposits is shown at Rs.2,IO,935/- as per Schedule-L, while the same is Rs.2,n,178/- as per Form 16A enclosed with the return. Therefore, Rs.61,243/- does not appear to have been offered for tax. iii. The assessee claimed Rs.13,80,0001- as Deferred Revenue Expenditure. The nature of these expenses is explained in Note 1.8(b) of Notes on Accounts. As per this note, the expenses have to be amortised over the residual lease period. From Schedule-J of the Balance Sheet, it is observed that the assessee has claimed Rs. Nil under the head Miscellaneous Expenditure (Deferred Revenue Expenditure) not written- off/adjusted, while in the immediately preceding year, the amount under this head was Rs.6,90,000/-. In absence of details in this regard, it is not clear how the entire amount ofRs.13,80,000/- was claimed as allowable business expenditure. In view of the above, I have reasons to believe that income chargeable to Income Tax has "escaped assessment due to failure/omission on the part of the assessee to fully and truly disclose all material facts in the return filed u/s.139 of the Income Tax Act, 1961 for the purpose of making assessment. Accordingly, a notice u/s.148 of the Income Tax Act, 1961 is issued to the assessee.”
3.1. According to the learned counsel for the Assessee there was no tangible material before the AO to come to a conclusion that there was escapement of income chargeable to tax which is a condition precedent for initiating proceedings u/s 147 of the Act. It was submitted by the assessee that the material which was available before AO were re-appreciated and proceedings u/s 147 of the Act have been initiated. According to him such a course is not permissible u/s 147 of the Act. In this regard the learned counsel for the assessee placed reliance on the decision of the Third Member of the Hon’ble Mumbai Tribunal in the case of Telco Dadagee Dhackjee Ltd vs DCIT in dated 12.05.2010 and the decision of ITAT Mumbai in the case of HV Transmission Ltd vs ITO in ITA NO.2230/Mum/2010 order dated 07.10.2011 and the decision of Hon’ble Delhi High Court in the case of Fives Stein India Projects Pvt. Ltd. A.Yr.2003-04 Pr.Commissioner of Income tax vs Tupperware India Pvt. Ltd. In ITA.415/2015 Judgment dated 10.08.2015. The crux of the ratio in the aforesaid decisions may be stated thus :- While resorting to section 147 of the Act even in a case where only an intimation had been issued u/s 143(1)of the Act”, it is essential that the AO should have before him tangible material justifying his reason to believe that the income had escaped assessment. It was submitted by him that in the present case no new material came to the possession of the AO on the basis of which the AO entertained belief that income chargeable to tax in the hands of the Assessee has escaped assessment. It was submitted that it was a case where re-appreciation of material already on record was done by the AO and the material looked into by the AO was in the form of looking into the audited accounts of the assessee. The learned counsel for the assessee therefore submitted that the reopening of the assessment was bad in law and the entire reassessment order had to be annulled.
The learned DR however pointed out that one of the reasons given by the AO for initiating proceedings u/s 147 of the Act was that interest on term deposit as per Schedule-L of the audited accounts had not been dealt with the income as per Form 16A enclosed with the return. This difference in the interest income was added by the AO in the assessment proceedings and accepted by the assessee in the proceedings before CIT(A). According to him this circumstance would by itself justify the reopening of assessment u/s 147 of the Act.
The learned counsel for the assessee in his reply submitted that notwithstanding the fact that the addition by way of interest income was accepted by the assessee that cannot be the basis to come to a conclusion that there were reasons to believe regarding escapement of income. It was submitted by him that reopening of assessment has to be on the basis of the facts as it prevails when the reasons are recorded by the AO and subsequent event should not be taken note of.
We have given a careful consideration to the rival submissions. As far as the legal position, regarding initiation of reassessment proceedings is concerned, the AO
Fives Stein India Projects Pvt. Ltd. A.Yr.2003-04 should entertain belief regarding escapement of income and such belief should be based on new and tangible material, even in a case where the assessee is completed u/s 143(1) of the Act. The decisions relied upon by the learned counsel for the assessee clearly support the contention raised by the learned counsel for the assessee before us. The question therefore as to whether there were no new tangible material before the AO for formation of belief regarding escapement of income. There was no such material except the material already on record. This is clear from the perusal of the reasons recorded by the AO, which we have already set out in the earlier part of this order.
We find that the facts of the present case are identical to the case decided by ITAT, Mumbai Bench in the case of HV Transmissions Ltd. (supra) the aforesaid case assessment has been reopening for the following reasons :- “From the Balance Sheet, Annexure 11, it is seen that assessee has incurred expenses towards Enterprise Resource Planning Software amounting to Rs.95,14,000/-. In the accounts, the assessee has debited 25% of this amount i.e. 23,78 ,500/- whereas in the computation of income, the assessee has claimed entire amount of Rs.95,14,000/- as a deduction. The expense incurred by the assessee towards Enterprise Resource Planning Software is payment of acquisition of software which is capital in nature and hence the assessee’s claim of the same as revenue expenses is not allowable.”
On the aforesaid facts ITAT Mumbai Third Member came to the conclusion that the reasons recorded were not based on new material coming to the possession of the AO. ITAT Mumbai Bench applying the ratio laid down in the case of Telco Dadaji Dhackjee Ltd. (supra) held as follows :- “As is clearly evident from the reasons recorded by the AO, there was no new material coming to the possession of the AO on the basis of which the assessment completed u/s 143( 1) was reopened and this position has not been disputed even by the learned DR. Relying on the decision of Hon 'ble Supreme Court in the case of Rajesh Jhaveri Stock Brokers (P) Ltd. (supra), he, however, has contended that the reopening of assessment completed originally u/s 143( 1) is permissible without there being any new material coming to the possession of the AO if the reasons recorded for reopening of the assessment are otherwise valid. The learned counsel for the assessee, on the other hand, has relied on Third Member decision of the Tribunal in the case of Telco Dadaji Dhackjee Ltd. (supra) stating that a similar issue involved in the said case has been decided by the Third Member in favour of the assessee after taking into consideration the decision of Hon 'ble Supreme Court in the case of Rajesh Jhaveri Stock Broker (P) Ltd. (supra) relied upon by the learned DR. In the said case, the return, filed by the Fives Stein India Projects Pvt. Ltd. A.Yr.2003-04 assessee was originally accepted u/s 143(1). In the said return the assessee had claimed deduction for payment of non-compete fees of Rs.75 lakhs which included payment of Rs.15 lakh toward Directors. The assessee had also claimed depreciation of Rs.l,41,858/- on lease premises. The AO issued notice u/s 148 on the ground that these were not allowable expenses and income chargeable to tax had escaped assessment. He accordingly disallowed both the item in the reassess- ment order. When the matter reached to the Tribunal, the learned Judicial Member took the view that there was no fresh material to support the formation of the belief of the AO that income chargeable to tax had escaped assessment and in the absence of any fresh tangible material, he came to the conclusion that it was not permissible for the AO to reopen the assessment. The learned Accountant Member, however, took a different view relying on the decision of Hon'ble Supreme Court in the ea e of Rajesh Jhaveri Stock Brokers (P) Ltd. (supra) and the matter, therefore, was referred to a Third Member for resolving inter alia, the following point of difference:
" Whether on the facts and circumstances of the proceedings initiated by the AO u/s 147 is liable to be confirmed or quashed when there was no fresh material available with the AO and the assessment had been completed originally u/s 143( I )."
The Third Member agreed with the view taken by the learned Judicial Member relying mainly on the decision of Hon 'ble Supreme Court in the case of Kelvinator India Ltd. (supra) and Eicher Ltd. 320 ITR 561. It was held by the Third Member that section 147 applies both to section 143(1) as well as section 143(3) and, therefore, except to the extent that a reassessment notice issued u/s 148 in a case where the original assessment was made u/s 143(1) cannot be challenged on the ground of a mere change of opinion, still it is open to an assessee to challenge the notice on the ground that there is no reason to believe that income chargeable to tax has escaped assessment. As regards the decision of Hon'ble Supreme Court in the case of Rajesh Jhaveri Stock Brokers (P) Ltd. (supra) cited by the Revenue and relied upon by the Accountant Member, the Third Member held that the same was applicable in cases where the return was processed u/s 143(1) but later on notice was issued u/s 148 and the assessee challenges the notice on the ground that it is prompted by a mere change of opinion. The Third Member then referred to the decision of Hon'ble Supreme Court in the case of CIT vs. Kelvinator of India (supra) wherein it was held that there should be "tangible material" to come to the conclusion that income had escaped assessment. relying on the said decision, it was held by the Third Member that while resorting to section 147 even in a ca e where only an intimation had been issued u/s 143(1 )(a), it is essential that the AO should have before him tangible material justifying his reason to believe that income had escaped assessment. Since there was no such tangible material before the AO from which he could entertain the belief that income of the assessee chargeable to tax had escaped assessment, the Third Member held that reassessment proceedings initiated by the AO were liable to be quashed on the ground that there was no tangible material before the AO even though the assessment was completed originally u/s 143(1). In our opinion, the Third Member decision of the Tribunal in the case of Telco Dadaji Dhackjee Ltd. (supra) is squarely applicable in the present case and respectfully following the same, we hold that the initiation of reassessment proceedings by the AO itself was bad in law and the reassessment completed in pursuance thereof is liable to be quashed being invalid. We order accordingly and allow ground No.1 of the assessee’s appeal.”
Fives Stein India Projects Pvt. Ltd. A.Yr.2003-04 8. We are of the view that the ratio laid down is equally applicable to the facts of the present case. We, therefore hold that proceedings u/s 147 of the Act is not validly initiated in the present case. Therefore the reassessment completed in pursuance thereof is quashed and held to be in valid. In view of the above conclusion on the preliminary issue the other grounds challenging additions made on merits are not taken into consideration.
In the result the appeal of the assessee is allowed.
Order pronounced in the court on 15.01.2016.