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2022 (2) TMI 1096 - HC - Income TaxReopening of assessment u/s 147 - reopening beyond period of four years - change of opinion - slump sale - deduction of interest paid on loan or borrowing from Public / State / Industrial financial institution as claimed by petitioner should not have been allowed because after slump sale, assets and liabilities belonged to the transferee and it was the transferee who paid the interest to these financial institutions in a subsequent Financial Year - HELD THAT:- The reasons expressly state that the Assessing Officer, who passed the original assessment order, had allowed this deduction and, therefore, reopening in our view, is only due to change of opinion, which, as held time and again by various courts, is not permissible. Moreover, in the notes to the Form 3CD submitted by petitioner alongwith its return of income expressly provided as pursuant to the slump sale in the previous year 13-14, the liability on account of interest payable and property tax payable was transferred to E-land Fashion India Private Limited. In case of E-land Apparel Limited, the said interest and property tax liability was disallowed u/s 43B of the Income Tax Act 1961 and was remaining unpaid as at the end of the previous year 13-14. As held by this court in 3i Infotech Ltd. vs. Assistant Commissioner of Income Tax [2010 (6) TMI 372 - BOMBAY HIGH COURT] petitioner had brought to the attention of the Assessing Officer this facet while submitting the tax audit report as a part of its return of income. This is not a case where petitioner can be regarded as having merely produced its books of account or other evidence during the course of the assessment proceedings on the basis of which material evidence could have been deduced by the Assessing Officer with the exercise of due diligence. Petitioner, u/s 139 of the Act had a mandatory obligation to furnish with its return of income the report of audit. Petitioner fulfilled its obligation. In the case at hand, the reopening is proposed after the expiry of 4 years after the end of relevant assessment year and assessment has been completed under Section 143(3) of the Act. Therefore, the proviso to Section 147 would apply and the onus is on respondents to show that there was a failure on the part of petitioner to fully and truly disclose all material facts necessary for assessment. This has not been discharged by respondents. In the affidavit in reply, as submitted by Mr. Suresh Kumar, what has been merely submitted is that there was incorrectness of the claim on the part of petitioner while filing its return of income, which has been discovered subsequent to the original assessment and, therefore, there is no change of opinion. We are afraid, we cannot agree with the view expressed by respondents.- Decided in favour of assessee.
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