2017 (6) TMI 285 - ITAT MUMBAI

Validity of reopening of assessment - disallowance/addition made u/s 40(a)(ia) - Held that:- No action can be initiated under section 147 after the expiry of 4 years from the end of the relevant assessment year unless the income chargeable to tax has escaped assessment by reason for the failure on the part of the taxpayer to disclose fully and truly all material facts necessary for his assessment. Recently in the case of Bayer Material Science Pvt. Ltd. v. DCIT (2016 (3) TMI 179 - BOMBAY HIGH COURT) held that non-disposal of objections and providing the assessee with the recorded reasons towards the end of the limitation period and passing a reassessment order without dealing with the objections results in gross harassment to the assessee which the Pr. CIT should note and take remedial action. In the present appeal also, the Assessing Officer issued notice u/s 148 of the Act, one day before, expiry of extended period of six years. Thus, considering the ratio laid down in the aforementioned judicial pronouncement and the material facts, we allow the appeal of the assessee by holding that reopening of assessment was not valid, beyond four years, when the material facts were duly disclosed by the assessee and the tax deducted at source was deposited in the state exchequer before due date of filing of return.

So far as, the deposit of tax deducted at source and invoking section 40(a)(ia) of the Act is concerned, we have made an elaborate discussion in the earlier paras of this order while disposing off the appeal of the for Assessment Year 2005-06 in favour of the assessee by holding that the amendment is retrospective in effect w.e.f. 01/04/2005. The Hon'ble Calcutta High Court in the case of Virgin Creations [2011 (11) TMI 348 - CALCUTTA HIGH COURT] held that the payment of TDS can be deposited in the state exchequer on or before the last date of filing of return u/s 139(1) of the Act for the relevant Assessment Year and the such deduction has to be allowed.

No contrary facts were brought to our notice by the Revenue establishing that the deduction has been granted twice to the assessee. Mere claim/allegation is not enough and it has to be substantiated with facts. Therefore we find no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal), resultantly, the appeal of the Revenue is having no merit, therefore, dismissed. - Decided in favour of assessee.