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2017 (5) TMI 968 - AT - Income TaxReopening of the assessment - Held that:- We find that in this matter the original order was passed u/s. 143 (1). The AO had issued a notice within the time u/s.148 after regarding the reasons for reopening. We find that the CIT(A)has upheld the re-opening, as it was based on justifiable reasons. Certain facts about the reopening would be dealt with in the subsequent paragraphs. Considering the totality of the facts of the case, we are of the opinion that there is no need to interfere with the order of the CIT (A). Hence, we dismiss the ground raised about reopening. Deduction u/s. 80P - Held that:- No affidavit of the CA concerned has been filed to prove that he had made the claim before the then FAA on his own and not as per the instructions of the assessee. The case of the assessee can be easily summarised in a Hindi proverb- “Chitt bhee meri Pat bhee meri. ”To save itself from the penal provisions, it claimed that it was a cooperative bank and for claiming deduction u/s. 80P now it claims that it is not a cooperative bank. As per the settled principles of taxation jurisprudence, as discussed in the earlier paragraphs, assessees and the AO. s are not allowed to approbate and reprobate. Rule of consistency is applicable to both the parties. The assessee has not filed any application before the then FAA requesting him to cancel the penalty order and claiming that submissions made by it were factually wrong. In the case under consideration, the assessee itself has claimed that it was a cooperative bank and the reopening is also based on the claim made by it before the FAA during the penalty proceedings. A person coming to judicial forums is supposed to come with clean hands. We are aware that morality and ethics are not part of the tax jurisprudence and we are also not deciding a moral issue. But, it does not mean that assessee can take a stand as per its convenience resulting in depriving the Sovereign of its due taxes. In our opinion, considering the peculiar facts and circumstances of the case under consideration, the order of the FAA does not suffer from any legal or factual infirmity. Therefore, confirming the same, we decide second ground of appeal against it. Audit fees and provision for gratuity - Held that:- FAA has given a categorical finding of fact that the assessee did not file any submission with regard to both the issues, before him, during the appellate proceedings. Before us also no documentary evidence was produced about payment of audit fees. In these circumstances, in our opinion, the FAA was justified in rejecting the claim made by the assessee. Grounds 2. b. and 2. c. stand dismissed.
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