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TMI Blog2014 (12) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,81,332.00 - Rs. 10,70,333.00) u/s 40(a)(ia) of the I.T.Act, 19761 on the grounds which are not correct. 2. For that the Ld.Commissioner of Income Tax (Appeal)-XXXVI,/Kol has erred in law as well as on facts of the case in enhancing the assessed income by a sum of Rs. 22,32,562.00 u/s 40(a)(ia) of the I.T.Act, 1961 to the tune of Rs. 23,32,532.00 on the grounds which are not correct. 3. For that the appellant craves leave to adduce, modify and/or alter the grounds at or before hearing." 2.1. The assessee has also raised additional grounds of appeal which is as under :- "2. For that on the facts of the case, the ld.CIT(A) was wrong in not considering the facts that the reopening u/s 147 was itself bad-in-law, therefore, the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee contended that section 195(1) of the Act does not apply. However AO was not satisfied. He referred to the confirmation received from AO, International Taxation, Mumbai having jurisdiction over M/s.Paramount Films of India Ltd. and proceeded to hold as under :- "In view of the above, M/s. Paramount Films of India Ltd., to whom the assessee has paid Rs. 42,81,332/- during the F.Y.2005-06 relevant to the assessment year 2006-07 without deduction of tax at source from payment, is a foreign company and provisions of section 195 of the Income-tax Act, 1961, is applicable in this case. But the assessee has failed to do so. Out of the above sum of Rs. 42,81,332/- paid to M/s. Paramount Films of India Ltd. an amount of Rs. 10,70,333 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paramount Film India Ltd. was also submitted before the AO. Hence the AO was fully aware of the nature of the payments made to M/s.Paramount Film (India) Ltd. The AO has considered the issue and also made addition in this regard. Hence he submitted that the reopening on the same issue of payment to M/s.Paramount Film of India Ltd. by the AO is not valid as it is a change of opinion and the AO has duly considered the issue of payment to M/s.Paramount Film of India Ltd. On the same issue now he cannot reopen the assessment to make further addition on fresh application of mind. In this regard the ld. Counsel of the assessee also contended that all material facts were disclosed before the AO and no material has come to the possession of the AO. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. In this there is a clear mention of payment to M/s. Paramount Film (India) Pvt. Ltd. wherein the outstanding amount has been shown at Rs. 10,59,716/-. The AO in this regard has noted that the assesse has given the names and address details very late. The AO has deputed the Inspector. The Inspector with regard to M/s.Paramount Film (India) Pvt.Ltd. has mentioned that "payments made during the year Rs. 55,54,177/-. As address is given at Mumbai. We could not verify the same within one day.". The AO noted that the assesseee was given an opportunity to represent the above discrepancy/payment and reconciliation. The AO noted that the assessee has chosen not to reconcile the same. AO also observed that the assessee has not given all the agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of mind has chosen not to make any disallowance. Hence it is clear that the AO has applied his mind regarding the nature of payment and chosen not to make any disallowance. 7.2. Now in this background we note that while reopening of the assessment on the same ground of payment to M/s.Paramount Film (India) Pvt. Ltd. AO has noted in the reason of reopening that as per records M/s.Paramount Film (India)Pvt.Ltd. having PA NO.AAACP9517E is assessed to tax in International Taxation 4(2), Mumbai. AO was of the opinion that the assesee was required to make TDS u/s 195 of the Act which the assessee has not done. Thus we note that no new fact has come to the notice of AO for reopening the issue of payment to M/s.Paramount Film (India) Ltd.. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of CIT vs Kelvinator of India Ltd reported in 320 ITR 561 (SC) has held as under :- "Therefore, post - 1st April 1989, power to reopen is much wider. However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, section 147 would give arbitrary powers to the Assessing Officer to reopen assessments on the basis of "mere change of opinion", which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review; he has the power to reassess. But reassessment has to be based on fulfillment of certain preconditions and if the concept of "change of opinion" is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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