TMI Blog2014 (9) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... in not permissible as per law. We thus set aside the notice of reopening the assessment dated 28.03.2011 and also all consequential orders. Since the ground of Assessee has been allowed and the re-assessment is held to be not valid.- Decided in favour of assessee. - I.T. A. No: 480/AHD/2013 & C.O. No: 127/AHD/2013, ITA No. 631/AHD/2013 - - - Dated:- 25-9-2014 - SHRI G.C.GUPTA VICE PRESIDENT SHRI ANIL CHATURVEDI, A.M. For The Appellant : Shri Sanjay R. Shah, A.R. For The Respondent : Shri Subhash Bains, CIT/DR ORDER PER SHRI ANIL CHATURVEDI,A.M. 1. The appeal and the C.O by the Assessee and the appeal by the Revenue are against the order of CIT(A)-I, Baroda dated 5.12.2012 for A.Y. 2008- 09. 2. The facts as culled out from the material on record are as under. 3. Assessee is a company stated to be in the business of manufacturing of Fertilizers and Chemicals. In this case originally assessment was framed u/s. 143(3) vide order dated 30.03.2010 and the total income was determined at ₹ 446,00,97,836/-. Subsequently, after recording reasons u/s. 147, notice under section 148 was issued on 28.03.2011 and thereafter assessment was framed u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(3) of the Act and accordingly there was no new tangible material for forming an opinion as envisaged by Section 147 of the Act and therefore, the reopening is invalid. It is submitted that it be so held now. 1.3 The learned CIT(A) erred in law and on facts in relying upon the judgment of Hon'ble Supreme Court in the case of Rajesh Jhaveri Stock Brokers Pvt. Ltd. (2007) 291 ITR 500 and Inductotherm (India) Pvt. Ltd. in Special Civil Application No.858 of 2006, since in both the above judgments, assessment was not completed u/s 143(3) of the Act but instead the return was processed u/s 143(1) of the Act which is not the appellant's case. It is submitted that it be so held now. 2. The learned CIT(A) erred on facts and in law in holding that the submission made by the appellant vide its letter dated 14/12/2011 during the course of reassessment proceedings could not have been considered by the Assessing officer as the same was submitted after the date on which the order was passed u/s 143(3) r.w.s. 147 of the Act. It is submitted that in the facts and circumstances of the case, the Assessing officer ought to have passed order only after submission on merits of the case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reopening and the validity of re-assessment u/s. 147 of the Act. 6. Before us, ld. A.R. submitted that for A.Y. 08-09, initially assessment was framed u/s. 143(3) vide order dated 30.03.2010. Subsequently notice u/s 148 r.w.s. 147 was issued on 28.03.2011 (i.e. within a period of 4 years) and the re-opening of the assessments were basically resorted for two reasons namely disallowance of prior period expenses of ₹ 99,44,276/- which according to A.O did not relate to A.Y. 08-09 and secondly for non inclusion of unutilized CENVAT credit while valuing the closing stock of raw materials. Before us, ld. A.R. submitted that notice dated 28.03.2011 u/s 148 of the Act has been issued within a period of 4 years from the end of the relevant assessment year and the jurisdiction to reopen an assessment cannot be exercised merely on account of change of opinion . He further submitted that all material facts with regard to A.Y. 08-09 were disclosed by the Assessee to the A.O during the course of original assessment proceedings which lead to assessment order u/s 143(3) dated 30.03.2010. Further, there was no new material fact which had come to the notice of the A.O that could lead to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the A.O for reopening the completed assessment amounts to change of opinion and it is nor permissible as per law and therefore is bad in law and for which he also placed reliance on the decision of Hon ble Gujarat High Court in the case of Heavy Metal and Tube Ltd. vs. DCIT (Special Civil Application No. 2463/A/2013 order dated 22.04.2013) and also placed at page 189 to 211 of the paper book, the copy of the aforesaid order. He further submitted that the reliance placed by ld. CIT(A) on the decision of Supreme Court in the case of Rajesh Javeri was misplaced and are not applicable to the facts of the present case for the reason that in the case of Rajesh Javeri (supra), the assessment was framed u/s. 143(1) and not u/s. 143(3). He therefore submitted that the re-opening be quashed. The ld. D.R. on the other hand supported the order of A.O and CIT(A). 7. We have heard the rival submissions and perused the material on record. It is an undisputed fact that the original assessment was framed u/s. 143(3) vide order dated 30.03.2010 and the notice u/s 148 was issued on 28.03.2011 and thus re-opening has been initiated within a period of 4 years from the end of the relevant assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciation and added in income, thus the Company has credited to its Profit Loss Account the sums of ₹ 279.56 lakhs (net) and offered for tax. The Company contends that though the credit / debit transaction is pertaining to earlier period the same have been ascertained / crystallized / quantified and settled during the year under consideration and accordingly debited / credited to Profit Loss account and claimed as such. These being of revenue items, wholly and exclusively for the purpose of business, the same have been claimed as deduction while computing the income. 9. On the basis of the reply of the Assessee filed before A.O it is thus seen that the A.O was aware of the method of accounting followed by the Assessee for valuation of closing stock and after having examined the issue and on being satisfied with the material produced and the explanation of the Assessee, the A.O did not make any addition on account of unutilized CENVAT credit. Similarly the submission of the Assessee with respect to prior period expenses was also accepted by the A.O without making any addition during the course of original assessment proceedings and it can thus be said that A.O had formed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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