TMI Blog2011 (3) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... Decided in the favour of assessee - ITA No. 2672/Mum/2009, ITA No. 3324/Mum/2009 - - - Dated:- 7-3-2011 - Pramod Kumar, V. Durga Rao, JJ. Kanchan Kaushal, Danesh Babana for the Shital Bandekar for the Appellant Pavan Ved for the Respondent ORDER Pramod Kumar: 1. These cross appeals are directed against the order dated 23rd January 2008, passed by the CIT(A) in the matter of assessment under section 143(3) r.w.s. 147 of the Income Tax Act, 1961, for the assessment year 2002-03. 2. The assessee has filed an application for admittance of an additional ground of appeal. It is submitted that this issue may be taken up first, because in the event of this additional ground of appeal being admitted, and being de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that we should admit the additional ground of appeal and dispose of the same on merits. Learned Departmental Representative, on the other hand, submits that the assessee had all the opportunities to raise this grievance before the Assessing Officer and before the CIT(A) but he has bypassed these forums and approach the Tribunal directly. It is submitted that while Tribunal may indeed have powers to admit an additional ground of appeal, but there have to be good reasons for assesse not raising such a grievance before the first appellate authority. We are urged to reject the additional ground of appeal. 5. Having regard to the rival submissions and having perused the material on record, we are inclined to admit the additional ground of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 'nil' after allowing current year's depreciation to the extent of Rs.14,48,00,987 and unabsorbed depreciation (current year) of Rs.3,07,57,548 was allowed to be carried forward. It is seen that the assessee company has acquired the business, on going concern basis, from M/s Hindustan Lever Limited at a purchase consideration of Rs.10,300 lakhs. In addition to this, the assessee company has paid Rs.351.61 lakhs to M/s Hindustan Lever Limited as interest, on delayed payment of purchase consideration, for the period 1/4/01 to 28/6/1 and the interest paid is treated as revenue expenditure. As interest is on account of delayed payment of acquisition cost of ongoing concern, it should have been treated as capital expenditure. As per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e full disclosure of all the material facts, but also specific questions were raised by the Assessing Officer which have been satisfactorily answered by the assessee. Our attention is invited to schedule 15 to the profit and loss account where interest paid on purchase consideration is shown exceptional item and proper disclosure is made in respect of the same. Our attention is also invited to notes on accounts, where disclosure about the interest payment and management fees payment to Hindustan Leaver Limited has been made. Learned counsel then invites our attention to the fact that, as evident from letter dated3rd March 2005, the Assessing Officer specifically requisitioned "nature and details of payment of management fees and interest" a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer on the same set of facts and without any new material coming to the light. We are thus urged to quash the impugned reassessment order itself. 8. Learned Departmental Representative submits that merely because the assessee has filed certain details, it cannot be inferred that the Assessing Officer has taken a conscious decision on the same. He points out that there is nothing in the assessment order to indicate that the Assessing Officer has taken a decision in respect of any of the issues on which reassessment is reopened. It is submitted that when the Assessing Officer has not considered these aspects of the matter, it is clear that opinion has not been formed and when opinion is not formed, there cannot be any question of a ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open. A reassessment has to be based on fulfilment of certain pre-condition and if the concept of "change of opinion" is removed, as was contended on behalf of the Department before Hon'ble Supreme Court, in the garb of re-opening the assessment, review would take place which is not permissible under scheme of reassessment under the Income Tax Act. Their Lordships have observed that "One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer" and, therefore, even after 1st April 1989n" Assessing Officer has power to reopen, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment". As regards the question of interest disallo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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