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Income Tax Appellate Tribunal, DIVISION BENCH’A’, CHANDIGARH
Before: SMT. DIVA SINGH & DR. B.R.R. KUMAR
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH’A’, CHANDIGARH BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA No.1384/Chd/2016 Assessment Year: 2011-12
The Dy. CIT Vs. M/s High Valley Industries Circle, Parwanoo Corporation, Vill- Kondi PO, Thana, Baddi
PAN No. AADFH8325A
Cross Objection No. 55/Chd/2017 (In ITA No. 1384/Chd/2016) Assessment Year: 2011-12
M/s High Valley Industries Vs. The Dy. CIT Corporation, Vill- Kondi Circle, Parwanoo PO, Thana, Baddi
(Appellant) (Respondent) Appellant By : Shri. Manoj Kumar Respondent By : Smt. Chanderkanta
Date of hearing : 12/12/2017 Date of Pronouncement : 08/03/2018
ORDER PER DR. B.R.R. KUMAR, A.M: The present appeal has been filed by the Revenue and Cross Objection filed by the Assessee against the order of the Ld. CIT(A) Shimla dt. 30/09/2016.
The Revenue has raised the following grounds of appeal:
On the facts and in the circumstances, the Ld. C1T(A) has erred in deleting the issuance of notice u/s 148 of the Income Tax Act, 1961 ignoring the fact that the assessee was not eligible for claiming 100% deduction u/s 80IC of the Income Tax Act, 1961 on account of substantial expansion and escaped its income from tax willfully. 3. The assessee has raised the following ground in his Cross Objection:
The Ld. CIT(A) is wrong in disallowing the benefit of substantial expansion under section 80IC(2) and confirming the deduction under section 80IC only to the extent of 25% as against 100% by holding that benefit of substantial
2 expansion is allowable only to the undertaking which were existing as on - 07/01/2003.
Brief Facts of the case are that the Assessee filed its return of income declaring income at Rs. 17,63,2607-on 30.09.2011 after claiming deduction u/s 80IC amounting to Rs. 1,57,26,784/-. Assessee firm is engaged in the business of manufacturing of self adhesive tapes and trading of polymers/resins. The assessee started its manufacturing activity/operation on 16.08.2005 and initial assessment year for claim of deduction u/s 80IC of the Act was A.Y. 2006-07. The assessee had already claimed deduction u/s 80IC to the extent of 100% of the eligible profits for five years period starting from A.Y. 2006-07 to A.Y. 2010-11. It was noticed that the assessee firm had again claimed 100% deduction against eligible profits in the relevant A.Y. 2011-12 which is 6th year of production for the firm by claiming to have carried out substantial expansion in A.Y.2011-12. The assessing officer after recording the reasons held that the income had escaped assessment and issued notice u/s 148 of the IT Act. The assessing officer, for the detailed reasons mentioned in the assessment order held that the assessee is eligible for deduction u/s 80IC only @ 25% as against the claim of 100% made by the assessee.
The Ld. CIT(A) held that reopening of the assessment is bad in law and thus proceeding initiated are quashed.
Before us the Ld. DR argued that the action of the Ld. CIT(A) is bad in law as the detailed reasons have been given by the Assessing Officer for initiation of proceedings under section 148. Ld. AR relied on the order of the Ld. CIT(A).
We have perused the material placed before us. The assessee filed its return of income on 30.09.2011. The Assessing Officer issued a notice u/s 148 to reopen the assessment on the ground that for the initial five assessment years i.e. A.Y. 2006-07 to 2010-11, the assessee was allowed deduction u/s 80IC to the extent of 100% of eligible profits. However, it was held that for the assessment year in question being 6th year of business, the assessee was eligible for deduction @ 25% instead of 100% as claimed by the assessee.
The similar issue has been dealt in the case of Amit Engineers in appeal
No.299/13-14/SML, A.Y.2011-12 wherein, the Coordinate Bench of ITAT,
Chandigarh in 63 Taxman.com 246 (Chandigarh-Trib.) [2015] dated 14/09/2015
has allowed the appeal of the assessee. The ITAT, Chandigarh in the judgment
in 63 taxman.com 246 (Chandigarh -Trib.) [2015] dated 14.09.2015 referred supra
held that the reopening of assessment was not as per law. The relevant portion
of the order is as under:-
"9. We have heard the rival contentions and perused the material available on record. Since the assessee has raised legal issues and lengthy arguments were made on this behalf from both the sides, we will adjudicate the same first.
From the perusal of reasons recorded and material available on record, we do not come across any tangible material coming in the notice of the Assessing Officer for formation of belief. The words used time and again in the reasons recorded are 'it is noticed that'. No reference to any other material is given. Even at the time of hearing before us, no such material could be brought to our notice. Therefore, admittedly, what triggered the Assessing Officer to reopen the case after issuing intimation under section 143(1) of the Act, is not coming out of records. In view of this, we proceed to discuss whether the provisions of section 147 of the Act read with section 148 of the Act are still applicable to the present case or not.
It is a trite law by now, that the only condition for the Assessing Officer to reopen the case is that for whatever reasons he has 'reason to believe' that income has escaped assessment, it confers jurisdiction on him to open the assessment. The phrase "reason to believe" has been defined in the Landmark judgment of the Hon'ble Apex Court in the case of Sheo Nath Singh Vs. ACIT (1971) 82 ITR 147, in following words :
'The words "reason to believe" suggest that the belief must be of an honest and reasonable person based upon reasonable grounds and that the income tax officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour.'
This proposition has been affirmed by a catena of decisions by the Hon'ble Supreme Court both prior to it and also later on, in different words.
There can be no dispute that the main ingredients for initiating these provisions are presence of material and live link between the material and the belief formed by the Assessing Officer, which makes the 'reasonable belief as propounded in the provisions itself. Coming to the "reason to believe", we may be guided by another judgment of the Hon'ble Apex Court in the case of Kelvinator India (supra). The case was rendered surely in the context of original assessment having been made under section 143(3) of the Act, however, the interpretation made was that of the phrase 'reason to believe', which is applicable equally to the cases made under section 143(l)(a) as well as 143(3) of the Act. In the case of Kel'vinator India (supra) while dealing with this, the Hon'ble Apex Court observed as under: "After 1st April, 1989, AO has power to reopen, provided there is "tangible material" to come to the conclusion that there is escapement of income
from assessment. Reasons must have alive link with the formation of the belief. " 14. Further, we are in total agreement with the argument of the learned D.R. that in cases originally made under section 143(l(a) of the Act, no question of difference of opinion arises as in that case, everything done by the Assessing Officer to reopen the cases under section 143(l)(a) of the Act would become change of opinion and no case under section 143(l)(a) of the Act could be reopened, which cannot be the intention of the Legislature. However, in our opinion, every case made under section 143(l)(a) of the Act can be reopened on any pretext, whatsoever, can also not be the intention of Legislature. There is a fine line of distinction between these cases. This is a very logical and plausible interpretation, that in cases under section 143(l)(a) if the case is reopened, it cannot be considered being made on change of opinion, since there was firstly no opinion then how can there be a change of opinion. This view has also been propounded by the Hon'ble Supreme Court in the case of Rajesh Jhaveri (supra). However, coming to the next aspect, whether the Assessing Officer can reopen any case made under section 143(l)(a), without there being any material in his possession to form a belief. Even in the case of Rajesh Jhaveri (supra), the Hon'ble Supreme Court has held that:
"18. So long as the ingredients of s. 147 are fulfilled, the AO is free to initiate proceeding under s. 147 and failure to take steps under s. 143(3}will not render the AO powerless to initiate reassessment proceedings even when intimation under s. 143(1) had been issued."
The logical interpretation is that in all cases, for reopening, the basic ingredients of section 147 of the Act are to be fulfilled.
We respectfully are guided by the said proposition laid down by the Hon'ble Supreme Court, while trying to analysis the present case.
The combined reading of the two judgments of the Hon'ble Apex Court in the case of Rajesh Jhaveri (supra) and Kelvinator India (supra) to our humble opinion, infers that though in case of section 143(l)(a) of the Act, any argument of it being illegal because of change of opinion is not sustainable, however, there has to be some tangible material in possession of the Assessing Officer to reopen such cases. In the present case, the assessee filed return under section 139 (1) as on 30J.2011, intimation under section 143(l)(a) of the Act was issued as on 23.7.2012 and the notice under section 148 of the Act was issued as on 14.6.2013. What came into his possession between these two dates, which triggers him to form a belief. The copy of reason as reproduced by the Assessing Officer, also filed by the assessee in his Paper Book, does not reveal any such material coming into his possession. Even the order of the Delhi Bench of the ITAT in the case of Tirupati LPG Industries Ltd. (supra) was also rendered after the recording of reasons by the Assessing Officer, which is otherwise also in assessee's favour.
The reliance placed in this context, by the learned counsel for the assessee on the order of the Third Member decision in the case of Telco Dadajee Dhackjee Ltd. (supra) is also not out of place, whereby in very clear terms, it has been held that even though the original assessment was completed under section 143(1) of the Act, no reopening can be done in the absence of any tangible material.
The reliance placed by the learned D.R. on the judgment of Hon'ble Supreme Court in the case of Rajesh Jhaveri (supra) is not applicable in the present case, as explained earlier, it is not a case where the reopening is contended to be bad in law for change of opinion, rather the contention of the assessee is that the Assessing Officer does not have any tangible material to form belief, which is one of the main ingredients for having 'reason to believe'.
Another aspect in these kind of cases is that if it is construed that reopening under section 147 of the Act can be done in cases where original assessment was made only under section 143 (l)(a) of the Act without there being any trigger coming into the possession of the Assessing Officer, some very weird situations may arise in consequence. The Income Tax Act is a very structured law, whereby all the Chapters, Sections, Sub-sections are made in a very well defined classified manner. Limitations have been provided at places, wherever required. A time limit is fixed for the issue of notice under section 143(2) of the Act for cases coming under scrutiny, these are the cases where the Assessing Officer chooses to process the returns filed by assesses. If the Assessing Officers are given free hand to reopen any of the cases of assessee under section 143(l)(a) of the Act without there being any trigger in their possession. The provisions of notice under section 143(2) of the Act will become redundant or rather the provisions of notice under section 143(2) and notice under section 148 of the Act will overlap. There will not be any embargo placed before the Assessing Officers to scrutinize the case in terms of time limit. They can open the case by issue of notice under section 143(2) of the Act (within the period prescribed under the said section) or even later, but by issuing notice under section 148 of the Act in place of 143(2) of the Act. This can never be the intention of Legislature. The sanctity of each and every provision of the Statute has to be maintained at all costs.
Before parting, we would also like to deal with the judgment in the case of Kalyanji Mavji & Co. (supra), relied upon by the learned CIT (Appeals). The said judgment is clearly distinguishable on facts, as in that case, information came in possession of the Assessing Officer after the original assessment by fresh facts revealed in the later assessment year. In the same case, the Hon'ble Apex Court has in very clear term, also held that: _
"It is obvious that where ITO gets no subsequent information, but merely proceeds to reopen the original assessment without any fresh facts or materials or without any enquiry into the materials which form part of the original assessment, s. 34(1) (b) would have no application." 22. Further, while not relying on the judgments of Hon'ble Delhi High Court, the learned CIT (Appeals) has not been able to cite any judgment of the Hon'ble Jurisdictional Himachal Pradesh High Court, to the contrary. In view of the above, relying on the judgment of Hon'ble Supreme Court in the case of Rajesh Shaver! (supra) and Kelvinator of India Ltd. (supra), we hold that the proceedings initiated in this case by the Assessing Officer under section 147 of the Act are not as per law and are hereby quashed.
Since, while adjudicating ground No.4, we have already quashed the proceedings initiated by the Assessing Officer, we do not find any need to adjudicate other grounds raised by the assessee.
In the result, the appeal of the assessee is allowed."
As the facts of two cases are also identical, it is hereby held that the case
under appeal is fully covered by the decision of the ITAT in the case of M/s. Amit
Engineers (supra). Hence we decline to interfere in the decision of the Ld. CIT(A)
which was based on the order of ITAT on the similar issue. It is not out of context
to hold that the reopening under section 148 also becomes in fructuous at this
juncture as the Hon’ble Jurisdictional High Court in the case of M/s StoveKraft India Vs. CIT(A) in ITA No.20/2015 and others has allowed the deduction @100%.
Cross Objection of the assessee is against the restriction of deduction u/80IC by the AO @ 25% as against the claim made @ 100% of the eligible profits. The said issue under consideration in this ground of appeal has already been adjudicated upon by the jurisdictional High Court in the case of M/s Hycron Electronics Vs. ITO and M/s StoveKraft India Vs. CIT(A) in ITA No.20/2015 and other related cases in favour of the assessee allowing 100% deduction. Following the same, this ground of the cross objection of the assessee is hereby allowed.
In the result appeal of the Revenue is dismissed and Cross Objection of the assessee is allowed.
The order is pronounced in the open Court.
Sd/- Sd/- (DIVA SINGH) (DR. B.R.R. KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated : 08/03/2018 AG
Copy to:
The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) The DR 5.