TMI Blog2012 (8) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... ly different from the A.Y. 2004-05 in view of the findings of the Third Member in assessee’s own case for A.Y. 2005-06 - the reassessment proceedings are invalid - in favour of assessee. - I.T.A No: 2867/M/2010 & C.O. No.11/M/2011 - - - Dated:- 29-6-2012 - SHRI B. RAMAKOTAIAH, SHRI VIVEK VARMA, JJ. Department by : Shri A. Komadi Assessee by : Shri Porus Kaka, Senior Advocate O R D E R Per Vivek Varma, J.M. : The instant appeal is filed by the department against the order of CIT(A)-3, Mumbai, dated 12.02.2010. On the service of notice of hearing, the assessee has filed a CO arising out of the appeal. 2. The department is in appeal against the order of the CIT(A), allowing the expenditure on account of advertisem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said disallowance called for. Thus expenses, amounting to Rs. 1,58,50,196 (this being 66.66% of Rs. 2,37,77,478) need to be disallowed as per specific findings of the A.O. for A.Y. 2005-06 . 5. The A.O. after considering the objections and submissions by the assessee disallowed the said amount in the assessment order passed u/s 143(3) read with section 147 on 19.01.2009. 6. The issue was taken up before the first appellate authority, where action u/s 148 was upheld but the disallowance was deleted (against which the department came in appeal in ITA No. 2867/Mum/2010, decided here above). 7. In the CO before the ITAT, the assessee has taken up this issue. 8. Before us, the Senior AR pointed out in assessment year 2004- 05, in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h details were not called for nor verified during scrutiny proceedings and appellant not having disclosed these details is incorrect and not supported by the facts of the case and material available on record. 3.1.2 The reopening is for disallowance of advertisement and publicity expenses considered excessive and unreasonable and as having benefited the NGC Network Asia from whom Appellant has a distribution agreement. Details available on record indicate that the said expenses have been looked into and verified by AO during assessment proceedings as also the appellant s distribution agreement. On consideration thereof, it is held that the AO s action of reopening the case for disallowance of the said expenses can only be treated a change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieve that taxable income has escaped assessment, therefore, the initiation for re-assessment proceedings by the A.O. is valid in law. 4. The ld. counsel for the assessee, on the other hand, submitted that the ld. CIT(A) was fully justified in holding the reassessment proceedings as invalid. He submitted that there is a fundamental difference between the decisions relied on by the ld. D.R. and the facts of the present case. Referring to the copy of the Third Member decision of the Tribunal in the case of the assessee for A.Y. 2005-06, the ld. counsel for the assessee drew the attention of the bench to page 2 of the order where a finding has been given that w.e.f. 1st July, 2004 the assessee company entered into advertising sales represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No new material has come to the notice of the A.O. Therefore, the re-opening of the assessment made by the A.O. is due to mere change of opinion which is not sustainable in law. He accordingly submitted that the ld. CIT(A) was fully justified in holding that the reassessment proceedings are invalid. 5. We have considered the rival arguments made by both the sides, pursued the orders of the Assessing Officer and the CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. In this case the scrutiny assessment was completed u/s 143(3) on 27th December 2006 wherein the returned income of the assessee at Rs. 8,96,50,630/- was accepted after considering the T.P. study Report. We f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reason must have a live link with the formation of the belief. In the instant case we do not find the reasons having any link with the formation of the belief since the A.O. while reopening the assessment for A.Y. 2004-05 has relied on the assessment order for 2005-06 on the issue of disallowance of advertisement expenses and the facts of A.Y. 2005-06 are completely different from the A.Y. 2004-05 in view of the findings of the Third Member in assessee s own case for A.Y. 2005-06. In this view of the matter and in view of the detailed reasoning given by the ld. CIT(A) we do not find any infirmity in the order of the ld. CIT(A) holding that the reassessment proceedings are invalid. We accordingly uphold the same. The ground raised by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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