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M/s Vijay Power Generators Ltd. Versus ACIT, Circle 17 (1) , New Delhi

2016 (5) TMI 407 - ITAT DELHI

Reopening of assessment - reason to believe and concealment of fact that i.e. Sales and stock transfer - Held that:- As during the assessment proceeding the assesse produced all the books of a/c with detail require by A.O., which have been dully examined & checked and discussed in the original assessment order. The detail chart of sale with stock transfer along with consolidate Audit balance sheet of Company head office Delhi and branch office / factory Pondicherry, which was dully filed during .....

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which has shown credited their stock less by ₹ 29,65,101/-. We find force in the assessee’s counsel version that because this unit is covered under Excise Act therefore to claim MODVAT as per excise law in the stock transfer. It segregated excise duty and CST in separate head in their books of account. - We also find that a notice dated 4.4.2008 u/s 154/155 of I.T. Act was received for clarification of sales assessment year 2004-05 including stock transfer shown in the Balance Sheet a .....

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assessment when there is no reason to believe and concealment of fact i.e. Sales and Stock transfer it mere change of opinion after the original assessment completed. We find that all the facts were duly discussed and verified, hence, there is no new facts or concealment of any facts as per section 147. - Decided in favour of assessee - I.T.A. No. 4086/Del/2013 - Dated:- 30-3-2016 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Assessee : Sh. Sanat Kapoor, Adv., .....

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he CIT(A) has failed to appreciate the fact that the notice uls 147/148 issued by the AO and the assessment order passed are illegal, bad in law, without jurisdiction and also barred by time limitation. 3. That the CIT(A) has in view of the facts and circumstances of the case, erred on facts and in law in upholding the notice uls 147/ 148 since this is a case of change of opinion and also no income had escaped assessment. 4. That the CIT(A) has in view of the facts and circumstances of the case, .....

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nd without jurisdiction. 6. That the CIT(A) has failed to appreciate that the fact that the AO has not taken the required approval prior to issuance of notice u/s 148 as such the notice U/s 148 is illegal and bad in law. 7. That the CIT(A) has in view of the facts and circumstances of the case , erred on facts and in law in upholding the notice u/s 147 1 148 since there was no fresh material /tangible material against the assessee. 8. That the CIT (A) has in view of the facts and circumstances o .....

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e and there is no provision under the law to tax the same. 10.That the explanations given, evidence produced, material placed and available on record has not been properly considered and judicially interpreted and the same do not justify the additions/allowances made. In any case the additions upheld by the CIT(A) are highly excessive. 11. That the various observations made by the CIT(A) and the AO are illegal, bad in law and factually incorrect and based on surmises and conjectures. 2. The brie .....

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AO added back the income of ₹ 29,65,101/- and completed the re-assessment at a total income of ₹ 34,20,270/- u/s. 143(3)/148 of the I.T. Act, 1961 vide his order dated 13.12.2011. 3. Against the order of the Ld. AO, assessee appealed before the Ld. CIT(A), who vide impugned order dated 30.3.2013 has dismissed the appeal of the assessee. 4. Aggrieved with the order of the Ld. CIT(A), Assessee is in appeal before the Tribunal. 5. At the time of hearing, Ld. Counsel of the assessee dra .....

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rther draw our attention towards the Page no. 45 of the Paper Book which is a notice u/s 154/155 of I.T. Act received on dated 04- 04-2008 for clarification of sales assessment year 2004-05 including stock transfer shown in the Balance Sheet and Profit & Losses Account filed from Delhi to branch Pondicherry, which contain element of stock transfer from Delhi to branch Pondicherry and vice- versa. He further draw our attention towards page no. 46 of the Paper Book which is a written explanati .....

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when there is no reason to believe and concealment of fact that i.e. Sales and stock transfer it mere change of opinion after the original assessment completed. All facts were dully discussed and verified there is no new facts or concealment of any facts as per u/s 147, there must be reason to believe the income has chargeable to tax has escaped assessment. He stated that the AO has wrongly added of ₹ 29,65,101/-. He further stated that the reassessment proceeding is time bar and assessmen .....

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a) Order dated 3.11.20087 in the case of M/s Haryana Acrylic Manufacturing Company vs. CIT passed in WP(C) No. 4074/2007 (Delhi High Court) 308 ITR 38 b) Order dated 14.8.2014 in the case of Madhukar Khosla vs. ACIT passed in CWP(C), CM No. 2744/2014 and 2745/2014 (Delhi High Court). c) ITAT, SMC-2, Delhi Bench decision dated 17.11.2015 passed in the case of Sh. Rakesh Bandhu vs. ITO in ITA No. 2586/Del/2014 (AY 2009-10). d) CIT vs. Kelvinator of India Limited 256 ITR 1 (Delhi) [FB] e) CIT vs. K .....

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s not arise. Accordingly, he requested that the Appeal filed by the Assessee may be dismissed. 7. We have heard both the parties and perused the records especially the orders of the Revenue authorities alongwith the Paper Book filed by the assessee containing pages 1 to 122 having various documentary evidences. We have also perused the case laws cited by the Ld. Counsel of the Assessee. We have also perused the reasons recorded by the AO which is at page no. 1 of the Assessment Order. For the sa .....

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of Delhi Unit had transferred goods amounting to ₹ 2,27,48,494/- to its Branch Unit Pondicherry but it was shown ₹ 1,97,83,393/- only by the Branch Unit in its purchase accounts. Therefore an amount shown ₹ 1,97,83,393/- only by the Branch Unit in its purchase accounts. Therefore an amount of ₹ 29,65,101/- should have been added to its income. This resulted in underassessment of income of ₹ 29,65,101/- involving short levy of tax of ₹ 10,63,730/-. 8. As regard .....

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e detail chart were dully verified from the Audit balance sheet of consolidated as well as individual of the company that is Head Office Delhi and branch office / factory Pondicherry. Even During the original assessment proceeding it was duly explained the difference in the stock transfer to branch and vice-versa and credited in the books of accounts There was difference of stock transfer to branch in the books of branch office which has shown credited their stock less by ₹ 29,65,101/-. We .....

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h contain element of stock transfer from Delhi to branch Pondicherry and vice- versa and in response thereto the assessee has filed the reply of the notice on 30.4.2008 explaining the detail of sale which contain detail element of transfer of stock and credited in the books of accounts which has been accepted by the Department and no further query was asked by the AO and sent the notice u/s. 147 on account of income escaping assessment when there is no reason to believe and concealment of fact i .....

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evenue which has been accounting in respective accounts as per excise act to claim MODVAT. In our considered opinion, this is a change of opinion case because the original assessment has been framed in the case of the assessee u/s. 143(3) of the I.T. Act on 28.12.2006, after making detailed enquiry and the AO has accepted the version of the assessee. Therefore, we are of the considered view that assessee had made full and true disclosure during the original assessment proceedings. We are also of .....

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