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TMI Blog2016 (5) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... ol/2010 (ITA No. 2074/Kol/2010 A.Y 2003-04) 3. In this C.O the assessee has raised following ground effective:- 1. For that in view of the facts and circumstances of the case the Ld. CIT(A) was wholly correct and justified in cancelling the re-assessment proceeding u/s 147 of the I. T Act, 1961 initiated by the A.O for the A.Y 2003-04 on a mere change of opinion beyond the prescribed time limit laid down in the Act as invalid and without jurisdiction in view of the full and true disclosure of all material facts in the return necessary for assessment and due consideration of the issues already made in the original assessment for that year and consequently annulling the entire assessment order u/s 1471143(3) dt. 08.12.2008 passed by him for the A.Y 2003-04. 2. Without prejudice to the Ground No.1 above, in case the appeal of the Department is allowed by reversing the Ld. CIT(A)'s decision and the re-assessment proceeding u/s 147 as well as the order u/s 147/143(3) are declared valid by the Hon'ble Tribunal, the Ld. CIT(A) may be directed to take up the other grounds of the assessee's appeal i.e Ground Nos. 5 to 9 filed before the Ld. CIT(A) relating to the issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce sheet belonging to M/s. Eastern Sugar & Industries Ltd has shown sundry debts at Rs. 184.79 lakhs for which the assessee submitted that as per their list, the credit the account of M/s. Eastern Sugar & Industries Ltd was Rs. 5,26,45,732/- and the difference of Rs. 12,55,143/- standing at sl. No-8 was over looked by the AO. 8. In respect of Schedule-G of the Balance Sheet, the AO observed that balance of Rs. 10,01,11,386/- shown towards M/s. Eastern Sugar & Industries Ltd as Sundry Debtor of the assessee. The assessee submitted that after adjustment of credit balance with the debit balance, net balance of Rs. 4,73,96,268/- remained due from M/s. Eastern Sugar & Industries Ltd. as on 31-03-2003 relevant to AY 2003-04. M/s. Eastern Sugar & Industries Ltd was a debtor of the assessee as on 31-03-2003. The AO found that the claim of the assessee is not verifiable from the material availableon record. Accordingly, the AO added the difference amount of Rs. 3,29,11,589/- being sundry creditors as appearing in the balance sheet of M/s. Eastern Sugar & Industries Ltd to the income of the assessee. 9. Aggrieved by such reassessment order of the AO framed u/s. 147/143(3) of the Act, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on mere change of opinion on matters, which are already on record ,where original assessment has been made under section 143(3) is not permissible. 3.4. In view of above position of fact and Law, and the submission of the L.d A.r it is held that the Assessee having made full disclosure of material facts in the return which was accompanied by several enclosures, and duly considered in the original assessment , then the completed assessment could not be reopened on mere change of opinion on the decided issues for the reason that certain income has been made the subject of excessive relief. Accordingly it is held that the precondition for invoking the proviso to S. 147 was not satisfied and therefore AO acted wholly without jurisdiction in issuing notice u/s. 148 beyond four years period mentioned in S. 147. Hence the order of assessment passed under section 147/143(3) is annulled. " 10. Aggrieved, the revenue is in appeal before us by raising respective grounds before us while the assessee has also filed C.O. 11. During the course of hearing before us the ld. Counsel for the assessee submitted that the ld. CIT(A) was fully correct and justified in cancelling the reassessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable. The relevant finding of which is reproduced herein below for better understanding:- "12. At the outset it requires to be factually noticed that the reopening order of the AO only refers to the report of Statutory Auditor under Section 44AB of the Act which report was already enclosed with the return filed by the Assessee. Therefore, factually, there was no new material that the AO came across so as to have 'reasons to believe that the income had escaped assessment." 14. The facts in the aforesaid decision are that the assessee's return of income was processed under section 143(1) at the returned amount. Subsequently, the Assessing Officer noted that in the audit report, the statutory auditor had reported that the management service fees was paid without deducting tax at source. Since said deduction was inadmissible under section 40(a)(i), the Assessing Officer held that he had reasons to believe that the aforementioned amount had escaped assessment. The CIT- (A) upheld reassessment proceedings but on merit deleted the addition. The Tribunal held that in the absence of any tangible material available with the Assessing Officer to form the requisite belief regarding e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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