TMI Blog2018 (12) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 11 - SUPREME COURT OF INDIA]. - Decided in favour of assessee. - I.T.A. No. 4464/Del/2018 - - - Dated:- 4-12-2018 - Shri H.S. Sidhu, Judicial Member For the Assessee : Shri Tarun Batra, CA For the Department : Sh . SL Anuragi, Sr. DR ORDER Assessee has filed this Appeal against the Order dated 04.4.2018 passed by the Ld. Commissioner of Income Tax (Appeals)-9, New Delhi pertaining to assessment year 2009-10 on the following grounds:- 1 The AO erred in reopening the case u/s. 147/148 of the I.T. Act, 1961 and Ld. CIT(A)-9 has erred in confirming the action of the Assessing Authority. The reopening has been against the law as the points raised in reopening of the case had been considered by the Assessing Authority in original assessment vide order dated 21.12.2011 passed u/s. 143(3) of the Act. 2. The Assessing Authority erred in making an addition of ₹ 7,80,475/- which were spent for repairs and maintenance and Ld. CIT(A) has erred in confirming the addition made. 3. That in the original assessment order of dated 21.12.2011 a disallowance of ₹ 3,00,000/- (Rs. three lacs only) out of repairs and maintenance of ₹ 7,80,435/- wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He further stated that AO did not have any fresh and new material showing that income of the Assessee escaped for chargeable to tax and therefore reopening is unjustified and solely based on change of opinion, which is not permissible under the law settled by the various Courts. To support his contention, he relied upon the following case laws:- i) Rallis India Ltd. vs. ACIT (2010) 323 ITR 54. ii) CIT vs. Cheil Communications India (P) Ltd. (2013) 354 ITR 549. iii) Gujarat Power vs. ACIT (2013) 350 ITR 266 iv) Lanxess ABS Ltd. vs. DCIT (Special Civil Application No. 17530 of 2011 dated 11.4.2012). v) Ralson India Ltd. Vs. DCIT (2014) 43 taxmann.com 293 vi) CIT vs. Mirza International Ltd. (2015) 54 taxman.com 217 vii) CIT vs. Orient Craft 354 ITR 536 6. On the other hand, Ld. DR relied upon the order of the Ld. CIT(A) and stated that the Ld. CIT(A) has passed a well reasoned order on the basis of the documentary evidence filed by the assessee as well as prevailing law. He further stated that Notice u/s. 148 has been issued after adopting the prescribed procedure under the law and with tangible material. Therefore, he stated that the question of quashing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 147/148 of the Income Tax Act 1961. It is also noted that the sine qua non for the initiation of proceedings in terms of section 147 is reason to believe on the part of the assessing officer that income chargeable to tax has escaped assessment. The reason recorded by the Assessing officer are as follows :- Re-opening the case was made on two points. Claim of Depreciation Expenses of Repair Maintenance 7.1 A perusal of the reasons would indicate that the Assessing officer has proceeded solely on the basis of return of income, enclosures and information submitted by the assessee company at the time of initial assessment and all the material and information were available with the assessing officer at the time of initial assessment under section 143(3) and the assessing officer was completely satisfied and on that very basis after considering all the details and documents made addition of ₹ 3,00,000/- by disallowing expenses under repair and maintenance expenses. The Reason for Reopening of the case was not based on any other new or tangible material and without any such material, the reopening of the case is not in accordance with law and is null and void ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt also had an occasion to consider similar question of law where the reopening of the assessment on the very same claim was made on the basis of the same material which was held a mere change of opinion and impermissible. 7.5 I further note that in case of Lanxess ABS Ltd. v. Dy. CIT [Special Civil Application No. 17530 of 2011, dated 11-4-2012] the Hon ble Court had dealt with an identical issue in a writ petition. The Court, after a detailed reasonings held in similar circumstances that the notice was illegal for having been issued without any tangible material to exercise jurisdiction under section 147 of the Act. Profitable, it would be, to reproduce some of the relevant portions of this decision: Where Assessing Officer passed assessment order under section 143(3) after considering assessee s explanation in respect of documents seized in course of search proceedings initiation of reassessment proceedings on basis of same material already available on record could not be upheld [Assessment year 1991-1992] [In favour of assessee] 7.6 In the case of Raison India Ltd.v.Dy. CIT [2014] 43 taxmann.com 293/366 ITR 103 (Delhi). the Court has held that since entire materia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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