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Deputy Commissioner of Income-Tax Circle-12 (5) , Bangalore Versus M/s Vijay Samraj Hotels Pvt Ltd

2015 (10) TMI 1610 - ITAT BANGALORE

Validity of reopening of assessment - Held that:- As evident from the reasons that there is no imputation of any failure by the assessee to disclose the relevant material for the purpose of assessment. Under the proviso to section 147 for a re-opening to be valid beyond four years from the end of the relevant assessment year there is a statutory requirement, that the failure on the part of the assessee to fully and truly disclose material facts must be ascertainable before invoking the section. .....

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ng cannot be considered valid. - Decided in favour of assessee. - ITA No. 264/Bang/2014 - Dated:- 11-6-2015 - Pramod Kumar, AM And P Madhavi Devi, JM,JJ. For the Appellant : Shri P Dhivahar, JCIT(DR) For the Respondent : Shri Chandrashekar, Adv. ORDER Per Smt. P Madhavi Devi,JM. This appeal by the revenue is against the order of the CIT(A)-III, Bangalore, dated 27/11/2013 in holding that the reopening of assessment is invalid and thus deleting the consequential addition for the assessment year 2 .....

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ly, during the re-assessment proceedings u/s 147 of the Act, the AO recalculated the book profits and the claim of reduction of ₹ 3,49,85,584/- representing the interest on term loan waived by the financial institution was not allowed from the book profits u/s 115JB of the Act. 3. Aggrieved, the assessee preferred an appeal before the CIT(A) who held the re-assessment to be bad in law and deleted the consequential disallowances and the additions made by the AO. Aggrieved, the revenue is in .....

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to the rival contentions and the material on record, we find that the assessment year before us is 2005- 06 whereas the notice u/s 148 was issued on 15/3/2012, i.e. after the lapse of more than 4 years from the end of the relevant assessment year. Therefore, as rightly held by the CIT(A), unless there is failure on the part of the assessee to disclose fully and truly all the material facts necessary for the assessment of its income, the assessment completed u/s 143(3) cannot be reopened. The CI .....

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made u/s 143(3) no action shall be taken to re-open the assessment after four years unless there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. The appellant has pointed out that the original assessment was completed u/s 143(3) in the course of which all relevant facts were made available to the AO. According to the appellant in the course of the scrutiny assessment which was completed on 30/11/2007 details regarding the sum .....

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tlement at the state level term lending institutions company has liquidated in full dues to lending institutions. Consequently company could avail waiver of interest including penal interest levied earlier amounting to ₹ 3,49,85,584/-." It is also pointed out that in the computation of income the waiver of interest on term loans amounting to ₹ 3,49,85,584/- has been separately mentioned and reduce d from the total income. Further, in the computation in form 29B relating to provi .....

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ion of the AO itself strengthens the appellant's case that all the material facts to be taken into account for computation of income of the appellant were available on record and there was no failure on the part of the assessee to disclose any material facts. It thus emerges that there was no omission on the part of the assessee to furnish any information or fact. 3.5 As there is no new material based on which the reopening would be warranted it is clear that the AO's action tantamount t .....

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income has escaped assessment and mere a change of opinion cannot be a reason to reopening the assessment. It has also held that the AO has no power to review under the garb of re-opening but has only a power to re-assess. I have also perused the reasons recorded by the AO to reopen the assessment u/s 147. This is as follows: 'The assessment order u/s 143(3) for AY 2005-06 was concluded on 30/11/2007 on a total income of Rs.Nil. The assessee company while computing the profit u/s 115JB has .....

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