TMI Blog2015 (2) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; and Schedule- 14 'Other Income'. From the above it is apparent that assessee has fully and truly disclosed all the materials in this regard. So it cannot be said that there was any failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. Hence manifestly this reopening is hit by the proviso to section 147 of the Act and in the light thereof reopening is not sustainable. - Decided in favour of assessee. - ITA No.598/Kol/2012, C.O.No.105/Kol/2012 - - - Dated:- 27-8-2014 - Sri Mahavir Singh, JM And Sri Shamim Yahya, AM,JJ. For the Petitioner : Shri M. L. Sardar, JCIT, Sr. DR For the Respondent : Shri Soumen Adak, FCA Shri Harish Agarwal, ACA ORDER Per Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue raised in the Cross Objection pertains to the jurisdiction of the assessment we are adjudicating the same first. 4. In this case assessment was completed u/s 143(3) of the I.T.Act on 23.03.2004. Subsequently notice u/s 148 of the Act was issued for reopening of the assessment. In the reassessment AO noted that on examination of assessment records it is seen that under the provisions laid down in section 36(1)(vii) of Income tax Act, 1961, amount of bad debt or part thereof which is written off as irrecoverable in the accounts of the assessee shall not include any provision for bad and doubtful debts made in the accounts of the assessee. 4.1. That it appeared form the computation of income filed with the return and profit and l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the issues under consideration, so there is no question of change of opinion. (ii) On perusal and examination of the reasons recorded by the A.O. it is observed that there is prima facie material and reasons to reopen the case. Hence, the reopening of the case by the AO is held valid and issues are being decided on merits. 6. In this regard the assesee by way of Cross Objection has challenged the decision of ld. CIT(A). The submissions of the assessee in this regard are as under :- Assessment for this year was made u/s 143(3) vide order dated 24.03.06 [Refer Pg.45- 51 of PB]. Notice u/s 148 has been issued on 05-03-2010 [Refer Pg.52 of PB] although there was no failure on the part of the assessee to disclose fully and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation came to the possession of the AO iv) It is merely fresh application of mind to the same set of facts. v) Reassessment is based on mere change of opinion. The above proposition is covered by the decision in the case of :- - CIT vs Kelvinator of India Ltd. (2010) 320 ITR 561 (SC) - G.N.Shaw (Wine) (P) Ltd. vs ITO (2003) 260 ITR 513 (Cal) - Exide Industries Ltd. vs DCIT (2012) 134 ITD 351 (Kol) - DCIT vs Juggilal Kamlapat Udyog Ltd [ITA No.1415/1416/Kol/2010, Order dtd.25- 04-2011] Further, reopening of assessment for mere change of opinion is not permissible as held in :- - CIT vs Usha International Ltd. (2012) 348 ITR 485 (Del(FB) - Asian Paints Ltd vs DCIT (2009) 308 ITR 195 (Bom). In view of the above t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for his assessment, for that assessment year. 7.1. Now we note that in this case assessment was earlier made u/s 143(3) of the Act for the concerned A.Yr.2003-04. Thereafter after expiry of four years from the end of A.Yr. notice was issued for reopening. Now the proviso to section 147 mandates that in such situation action cannot be taken for reopening unless income chargeable to tax escaped assessment by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. Now the reopening in this case has been made on the reasoning that provision for doubtful debts are written back is an ascertained liability and hence the same should not be allowed as deduction. Now the detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created and written back during the year. Thus after fully examining the issue in the assessment order u/s 143(3) of the Act the AO has allowed the provision. Now under reopening when the AO is disallowing the same claiming that it is unascertained liability it is manifestly a change of opinion and hence reopening on the basis of change of opinion is not permissible under law. Thus we fully agree with the submissions of the ld. Counsel of the assessee that reopening of assessment u/s 147 of the Act is invalid in as much as there was no failure on the part of the assessee to disclose fully and truly all material facts and the materials necessary for assessment were available on record. Re-assessment was made merely on change of mind to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
