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2016 (5) TMI 95

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..... ng Officer, at the time of original assessment, was very well aware about the primary facts. The Assessing Officer, while reopening the assessment under section 147, has made no reference to any new material which has come into her possession after the completion of the original assessment under section 143(3) of the Act. In our opinion, it is merely a fresh application of mind by the Assessing Officer to the same set of facts. Thus, it is our considered view that it is a case of mere change of opinion on the material which was already available on record at the time of completion of the original assessment. Therefore, the proceedings for reassessment under section 147 fail to stand the test. - Decided in favour of assessee - I. T. A. No. .....

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..... 00,000 had been shown under the reserves and surplus (capital reserve) but the same was not added in the income. In view of decision in the case of Sahney Steel and Press Works Ltd. v. CIT [1997] 228 ITR 253 (SC), it has been held that grants/subsidy paid to the assessee as assistance to carry out the business operation after the commencement of production is assessable as business income. Royalty expenditure irregularly debited in the profit and loss account Expenditure regarding royalty amounting to ₹ 4,50,42,246 had been debited in the profit and loss account during the year ended on March 31, 2002. As per the Supreme Court judgment in the case of Southern Switch Gear Ltd. v. CIT [1998] 232 ITR 359 (SC), the expenditure o .....

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..... on fixed assets remaining unverified. (vi) ₹ 40,00,000 on account of subsidy received from the Government of Uttaranchal. 4. The assessment was finalised at a total income of ₹ 18,73,10,667. 5. In the first appeal before the learned Commissioner of Income-tax (Appeals), the assessee challenged the initiation of reassessment proceedings as well as the quantum additions on the merits. The assessee's ground of appeal pertaining to the initiation of the reassessment proceedings was rejected. The learned Commissioner of Income-tax (Appeals) also upheld the additions on account of GPF contribution (Rs. 3,36,352), employees' contribution of GPF (Rs. 2,53,26,202) and prior period expenditure (Rs. 4,76,574). The assesse .....

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..... hange of opinion/reappreciation of the facts without there being any change in the circumstances or additional facts or fresh information having come in the possession of the Assessing Officer between the passing of the original order under section 143(3) and the date of issuance of notice under section 148. The learned authorised representative submitted that in fact the Assessing Officer has sat on a review of her earlier order which was not legally permissible. He drew our attention to the reasons recorded by the Assessing Officer and submitted that the Assessing Officer had not stated the availability of any new information or fact or evidences. He further submitted that all the information used by her for recording of reasons for the p .....

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..... e of original assessment proceedings and the reasons recorded for initiation of reassessment proceedings, it is very much evident that the reassessment proceedings were initiated by the Assessing Officer on the basis of same set of facts which were available before the Assessing Officer at the time of the original assessment. We are of the considered view that the Assessing Officer, at the time of original assessment, was very well aware about the primary facts. The Assessing Officer, while reopening the assessment under section 147, has made no reference to any new material which has come into her possession after the completion of the original assessment under section 143(3) of the Act. In our opinion, it is merely a fresh application of .....

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..... it may be a mere possible view or where the issues are debatable. Even the Income-tax Appellate Tribunal has limited jurisdiction under section 254(2). Thus, when the Assessing Officer or the Tribunal has considered the matter in detail and the view taken is a possible view, the order cannot be changed by way of exercising the jurisdiction of rectification of mistake. It is a well-settled principle of law that what cannot be done directly cannot be done indirectly. If the Income-tax Officer does not possess the power of review, he cannot be permitted to achieve the said object by taking recourse to initiating a proceeding of reassessment or by way of rectification of mistake. In a case of this nature the Revenue is not without remedy. .....

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