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2012 (12) TMI 874 - HC - Income TaxRe opening of assessment - labour charges and radiography charges to be disallowed u/s 40(a)(ia)- Non deduction of TDS - Held that:- As during the assessment proceedings leading to the assessment order dated 11/11/2009 the petitioner had disclosed all facts with regard to deduction being claimed on account of labour charges and radiography charges. In fact, the assessment order dated 11/12/2009 records the fact that a notice was issued to the petitioner to explain why expenses on account of labour and radiography charges should not be disallowed under Section 40(a)(ia) & petitioner explained its view point and the AO on consideration of those facts in his order of assessment dated 11/12/2009 concluded that these payments on account of radiography charges and labour charges are tax deductible at source in terms of Section 194C. Thus the petitioner has disclosed all primary facts and on consideration of those facts as reflected in the assessment order dated 11/12/2003 therefore, the impugned notice u/s 148 and the reasons in support thereof clearly indicates that it has been issued merely on the basis of change of opinion and would amount to a review of the Assessment Order dated 11/12/2003. The reasons for reopening is not on the basis of any tangible material but merely on verification of the material and primary facts already on record that the AO has duly considered while passing the order dated 11/12/2003 for AY 2007-08. Also that is in the order dated 15/10/2012 rejecting the objections filed by the petitioner with regard to reassessment proceedings for assessment year 2007-08 a completely new ground has been added to reopen assessment is the lack of co-relation between the payment received by the petitioner and the TDS Certificate issued by the persons making payment to it during the assessment year 2007-08. This according to order dated 15/10/2012 resulted in under assessment of income to the extent of ₹ 21.61 lacs. The aforesaid issue was not one of the grounds specified in the reasons communicated to the petitioner on 23/7/2012 for the purpose of reopening the assessment for assessment year 2007-08. Our Court in the matter of Hindustan Lever Ltd. v. R.B. Wadkar, Assistant Commissioner of Income Tax and others reported in (2004 (2) TMI 41 - BOMBAY HIGH COURT ) has held that for the purpose of examining the jurisdiction to reopen a completed assessment one is only concerned with the reasons recorded at the time of issuing notice under Section 148 of the Act. These reasons cannot be supplemented/ improved upon later. Therefore, the order dated 15/10/2012 disposing of the objection also cannot be sustained - the impugned notice dated 28/3/2012 is bad in law - in favour of assessee.
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