TMI Blog2022 (1) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... cord, and the explanation offered, arrived at a final conclusion that the assessee is entitled to the deduction as claimed, then on the basis of the very same material, the AO cannot form a prima-facie opinion that the deduction is not allowable and, accordingly, reopen the assessment on the ground that income chargeable to tax has escaped assessment. A Division Bench of this Court in Cartini India Limited, (Formerly Godrej Appliances Ltd. [ 2009 (3) TMI 28 - BOMBAY HIGH COURT] has observed that where on consideration of the material on record, one view is conclusively taken by the assessing officer, it would not be open to the assessing officer to reopen the assessment based on the very same material with a view to take another vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at income of petitioner for Assessment Year 2004-05 has escaped assessment. According to petitioner, the notice is without jurisdiction inasmuch as the same has been issued without formation of a valid belief that the income of petitioner has escaped assessment for the assessment year 2004-05, since the issues raised have been the subject matter of consideration while framing the original assessment. Therefore, reopening is sought on the basis of change of opinion relying on the same set of material. 2. Mr.Pardiwalla also submitted that it is quite obvious from the reasons for reopening recorded by a jurisdictional Assessing Officer that there has been non-application of mind while recording the reasons. Consequently, even the approval g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 293.34 lakhs incurred during the year were debited to natural heads of account under the Profit and Loss Account for the year under review. Petitioner in its return on income for the assessment year under review had claimed store launch expenses actually incurred during the year of ₹ 293.24 lakhs as revenue expenditure and also added back ₹ 186.23 lakhs of such amortized expenses of earlier years under its Computation of Business Income . The JAO has now sought to reopen the assessment under section 148 of the Act in order to disallow the above deduction in respect of store launch expenses incurred on the ground that its in the nature of capital expenditure . 7. The details mentioned above are contained in computat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the material which was already on record at the time of passing the assessment order under Section 143 of the Act. Once, the Assessment Officer, on consideration of the material on record, and the explanation offered, arrived at a final conclusion that the assessee is entitled to the deduction as claimed, then on the basis of the very same material, the Assessing Officer cannot form a prima-facie opinion that the deduction is not allowable and, accordingly, reopen the assessment on the ground that income chargeable to tax has escaped assessment. A Division Bench of this Court in Cartini India Limited, (Formerly Godrej Appliances Ltd. Vs. Additional Commissioner of Income Tax Ors. (2009) 314 ITR 275 (Bom.) has observed that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present. The assessee had during the course of the assessment proceedings made a complete disclosure of material facts. The Assessing Officer had called for a disclosure on which a specific disclosure on the issue in question was made. In such a case, it cannot be postulated that the condition precedent to the reopening of an assessment beyond a period of four years has been fulfilled. 9. The facts of this case that the claim for deduction of store launch expenses are almost similar to that of Cartini India Limited (Supra), where project launch expenses were claimed by petitioner as revenue expenses even though in its books of accounts, the petitioner had shown the expenditure spread over a period of 3 years and was allowed to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd according to respondents it is a typographical error that the figure of ₹ 3.02 lakhs was mentioned instead of ₹ 293.24 lakhs. In our view, this mistake demonstrates non-application of mind by respondent No.1 at the time of recording of the reasons for reopening the assessment. Though we do not find the approval under section 151 of the Act in the record and proceedings, we can certainly hazard a guess that even the Approving Authority would not have applied its mind or read the reasons recorded before granting approval. If it had only been read, these errors would have come to light at that stage itself. Therefore, for all the aforesaid reasons, we quash the impugned notice dated 31st March 2009 under section 148 of the Act t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
