TMI Blog2012 (7) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... – Held that:- Quantum of service charges was being calculated on the basis of quantum of milk packed but was charged only for cold storage - Assessing Officer has not understood the fact clearly. Packing and pasteurisation are not done by the assessee but only a place is given to Dudh Sungh - functions of Dudh Sungh and the assessee are defined in clear terms vide these agreements - it is only the methodology devised for quantifying the charges and it does not indicate that the assessee is rendering services other than cold storage - ground raised by the Revenue dismissed. Income derived from redemption of units of mutual funds - simply observed in the order that such an income bears the character of interest and as such has to be broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s objection is that, on consultation with the learned Counsel for the assessee, the assessee was adviced to file this cross objection, as the re-opening was a mere change of opinion. We find that the learned Counsel, who appeared before us, is the Counsel who appeared before the Commissioner (Appeals) also. Thus, the reason given of belated consultation is, in our opinion, not convincing. We, thus, hold that the assessee was not able to properly explain the reasons for the delay in filing the cross objection. Consequently, the grounds raised by the assessee in its cross objection no.167/Mum./2009, for assessment year 2001-02, are hereby dismissed. 4. In the result, assessee s cross objection is dismissed. We now take up Revenue s appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appellate authority wherein the Commissioner (Appeals) held that the quantum of service charges was being calculated on the basis of quantum of milk packed but was charged only for cold storage. He held that the Assessing Officer has not understood the fact clearly. Packing and pasteurisation are not done by the assessee but only a place is given to Dudh Sungh. On the ground that there is no element of receipt by the assessee of any amount other than cold storage charges, the Commissioner (Appeals) directed allowance of the amount. Aggrieved, the Revenue is in appeal before the Tribunal. 7. Before us, the learned Departmental Representative submitted that on perusal of Page-14 of the assessee s paper book, it can be seen that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... storage. He pointed out that similar is the activity of pasteurisation. 10. On the issue of levy of charges, he pointed out that it was just a unit of measurement. He also drew the attention of the bench to the certificate given by Dudh Sungh which is placed at Page-116 of the paper book. He relied on the findings of the Commissioner (Appeals). On facts, the assessee has no income whatsoever from packing of milk and pasteurisation of milk. 11. On grounds no.2 and 3, he relied on the order of the Commissioner (Appeals). 12. Rival contentions heard. On a careful consideration of the facts and circumstances of the case and on a perusal of the papers on record, we find that the agreement dated 11th May 1992, between the assessee and Kol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, we uphold the findings of the first appellate authority and dismiss the ground raised by the Revenue. 15. Coming to ground no.2, which is on the issue of second notice under section 148 of the Act, we uphold the findings of the first appellate authority. When the assessment is already re-opened, no second notice can be issued. Thus, this ground is dismissed. 16. On ground no.3, the Commissioner (Appeals), vide Para-2/Page-4, held as follows:- 2. The second ground of appeal is against the finding of the assessing officer that income derived from redemption of units of mutual funds is required to be taxed as income under the head Other Sources . The assessing officer has not given any detailed reasons for arriving at this concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on no.185/Mum./2011, arising out of Revenue s appeal in ITA no.6695/Mum./2010, for assessment year 2002-03. 22. After hearing both the parties, we find that the assessment order was re-opened after processing the return of income under section 143(1) of the Act. The assessee s argument that there is a change in opinion cannot be entertained in view of the judgment of Hon'ble Supreme Court in ACIT v/s Rajesh Jhaveri Stock Brokers P. Ltd., [2007] 291 ITR 500 (SC). The Hon'ble Supreme Court held as follows:- Held, accordingly, that the Assessing Officer had jurisdiction to issue notice under section 148 for bringing to tax income escaping assessment in an intimation under section 143(1)(a) on the ground that the claim for bad debts by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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