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TMI Blog2015 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities below, material available on record and the decisions relied upon. 3. The facts in brief are that the assessee filed its return of income on 29.10.2009 declaring income of Rs. 5,81,20,574 which was processed under sec. 143(1) of the Act. Later on, the case was selected for scrutiny and assessment was framed on 29.12.2006 at assessed income of Rs. 6,42,94,200. Subsequently, the Assessing Officer noted from the records that the assessee company had paid royalty of Rs. 75,52,343 to M/s. Chancellor Oil Tools, a company incorporated under U.S. Law. The Assessing Officer noted that as per the decision of Hon'ble Supreme Court in the case of Southern Switch Gear Ltd. vs. CIT - 232 ITR 359 (S.C), 25% of royalty payment has to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the ITAT in the case of assessee itself for the assessment year 2003-04 vide order dated 14.11.2014 in ITA No.4740/Del/2004, a copy whereof was made available to the Bench and Learned DR. 5. The Learned DR on the other hand submitted that different facts were there before the ITAT for the assessment year 2003-04 as therein, the reassessment proceedings have been held as barred by limitation as per the proviso to sec. 147 of the Act. He submitted that there was no change of opinion but escapement of assessable income was there as per the decision of the Hon'ble Supreme Court in the case of Southern Switch Gear Ltd. vs. CIT (supra). He placed reliance on the following decision to support his contention that even the decision of Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year 2003-04 in the reasons recorded, the Assessing Officer had also shown Rs. 5,02,778 (25% of Rs. 20,11,115) which was to be capitalized in view of the decisions of Hon'ble Supreme Court in the case of Southern Switch Gear Ltd. vs. CIT (supra). Hence, it was held escapement of assessable income. The ITAT held that all the three issues including issue of 25% capitalization of the royalty payment raised by the Assessing Officer were dealt with during the original assessment under sec. 143(3) of the Act, hence, it was a clear case of change of opinion, correctly held by the Learned CIT(Appeals) following the ratios decidendi of the Hon'ble Supreme Court in the case of Kelvinator India Ltd. - 320 ITR 561 (S.C) wherein it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was received by the Assessing Officer. In the case of Shri Krishna Pvt. Ltd. vs. ITO (supra), there was failure on the part of the assessee to disclose material fact necessary for assessment. There is, however, no dispute on the ratio laid down by the Hon'ble Andhra Pradesh High Court in the case of CIT vs. Nova Pan India Ltd. (supra) that "information" includes information as to relevant judicial decisions. Here also, the facts were different as the decisions of hon'ble court had come to the knowledge of the ITO after assessment was framed. The decision of Hon'ble Delhi High Court in the case of CIT vs. Munjal Showa Ltd. (supra), relied upon by the learned AR is on the other hand squarely covers the issue raised having almost simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated the penalty order with this submissions that the assessment has escaped with a wrong claim made deliberately by the assessee to evade tax had the scrutiny assessment be not taken in the case. 13. The learned AR, however, pointed out that the penalty in question also does not stand since in between the ITAT in the year under consideration i.e. assessment year 2005-06 in ITA No. 2281/Del/2009 vide order dated 29.8.2014 has decided the issue of validity of addition made on account of payment of commission to its directors as not valid in view of the decision of the Hon'ble jurisdictional High Court in the case of Meta Plast Pvt. Ltd. vs. DCIT - 341 ITR 563 (Del.) holding that sec. 36(1)(ii) is not attracted if the payment of commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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