TMI Blog2012 (12) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... Saxena, CIT/DR Assessee by : Shri Yeshwant Sharma, CA ORDER PER JOGINDER SINGH The revenue is aggrieved by the order dated 30.3.2010 of learned Commissioner of Income Tax (Appeals), Bhopal, on the ground that on the facts and in the circumstances of the case, the ld. first appellate authority erred in holding that the Assessing Officer did not assume valid jurisdiction u/s 147 and the notices u/s 148 were bad in law, consequently, the assessment orders framed u/s 147/143(3) of the Act became invalid. The assessee has also preferred cross objections on the plea that the Assessing Officer was not justified in not accepting the book profit shown by the assessee and the MAT liability paid thereon u/s 115JB of the Act and thus the learned Commissioner of Income Tax (Appeals) ought to have held that business loss had priority over brought forward unabsorbed depreciation in the matter of set off while working the MAT liability. 2. During hearing, the learned CIT DR, Shri Keshav Saxena, advanced very forceful arguments by submitting that with effect from 1994 there is an amendment in section 115JB of the Act and since in the assessment year 2000-01 there is no loss it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the assessee, Shri Yeshwant Sharma, tried to dislodge the assertion of the learned CIT DR by submitting that the calculation made by the assessee is based on facts, therefore, true by inviting our attention to page 51 of the paper book (assessment year 2001- 02) by asserting that current year s depreciation has to be added back because the assessee had profits which will reduce the depreciation, therefore, the assessee reduced Rs. 7,29,50,450/-. Our attention was also invited to page 50 of the paper book. A strong plea was raised by the learned counsel that the cases relied upon by the revenue are having no bearing to the facts of the present appeals. The thrust of the arguments is in support to the impugned orders. Reliance was placed upon the decision of the Hon'ble Apex Court in JCIT v. Rolta India Limited (2011) 330 ITR 470. 3. We have considered the rival submissions and perused the material available on file. Brief facts of the case are that the assessee is a joint venture with Government of Madhya Pradesh, declared total income at nil in its return filed on 31.10.2001 (assessment year 2001-02) under the normal provisions of the Act and the book profit at Rs.1,33,69, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JB (As claimed by assessee) 1995-96 (-)12803191 (-)704435 (-)13507626 (-)12803191 (-)704435 1996-97 (-)53514656 (-)1227733 (-)54742389 (-)66317847 (-)1932168 1997-98 (-)9774649 (-)6929798 (+)2844851 (-)65405165 Nil 1998-99 (-)16621425 (-)12045447 (-)28666572 (-)82026590 (-)12045447 1999-00 (+)19481216 (-)12337245 (+)7143971 (-)82026590 (-)4901476 2000-01 (+)5147791 (-)13400801 (-)8253010 (-)82026590 (-)13154486 Accordingly, book profit for the A.Y. 2001-02 should have been reduced by the amount of UAD of Rs.13154486/- and not Rs.22230625 as taken by the assessee. I have, therefore, reasons to believe that the taxable book profit and hence the income of the assessee has escaped assessment within the meaning of provisions of section 147 of the Act to the tune of Rs.9076139/- (Rs. 22230625 Rs. 13154486) Similar reasons were recorded for A.Y. 2002-03. On perusal of the above reasons recorded, it is seen that there is not even a whisper in the reasons recorded that there was a failure on the part of the appellant to disclose fully all material facts relating to the calculation of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermissible. In the case of Dr. Amin s Pathology Laboratory, it was held that for making reassessment, there should have been failure to disclose material facts necessary for assessment and under the facts of that case mere production of balance-sheet or account books was held to be not amounting to fully disclosure of material facts necessary for assessment. Identical ratio was laid down in the case of WCI (Madras) (P) Ltd. (supra). We are in full agreement with the ratio laid down in these judicial pronouncements. However, question arises whether the assessee fully disclosed the material facts vis.a.vis applicability of these judicial pronouncements. We find that the assessee declared total income at nil under the normal provisions of the Act and book profit u/s 115JB of the Act was claimed on 31.10.2001 in both the assessment years the original assessment was completed u/s 143(3) of the Act on 27.2.2008 and notices u/s 148 in both the appeals were issued on 9.4.2007. The uncontroverted fact is that even the learned Assessing Officer has found fault from the claim of the assessee out of the facts mentioned in the original return filed by the assessee which has been reproduced (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return u/s 139 or to disclose fully and truly all material facts necessary for assessment. It is seen that the assessment was completed u/s 143(3) of the Act and as per sub-section (iii) of section 148 there was no failure on the part of the assessee in computing the book profit for the purposes of section 115JB of the Income-tax Act, 1961. The facts regarding carry forward business loss and unabsorbed depreciation of earlier years have been truly and fully disclosed which was necessary for framing the assessment. We further find that the information returned by the assessee (which was available on record) was wrongly interpreted by the AO while recording the reasons. Even in the recorded reasons, there is no whisper that there was failure on the part of the assessee to disclose fully and truly all material facts for the calculation of book profit u/s 115JB. In view of these facts, reopening of assessment after the expiry of four years is not justified as notice u/s 148 was issued on 9.4.2007, consequently, the assumption of jurisdiction u/s 147/148 is also unjustified. In view of these facts, we find no infirmity in the stand of the CIT(A). So far as the cross objections of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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