TMI Blog2017 (8) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon’ble Apex Court in CIT vs. Excel Industries Ltd. [2013 (10) TMI 324 - SUPREME COURT] held that when the rate of tax remain the same and the assessee has paid the tax in the subsequent accounting year then the dispute raised by the Revenue is entirely academic and therefore, there is no need for Revenue to continue with the litigation when it is quite clear that not only it was fruitless but also that it meaning have added anything must to the public coffer. From the factual discussion and the legal position, we hold that no income was escaped from the assessment. Moreover, the impugned income (Sale tax liability) was offered by assessee in the subsequent AY was merely a change of opinion. The re-opening based on change of opinion ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in its appeal ITA No 7215/M/2011 has raised the following grounds of appeal: 1. Order bad in law and on facts (Ground No. 1.1 to 1.2). 2. Erroneous conclusion on the validity of the reassessment (Ground No. 2.1 to 2.3). 3. Erroneous conclusion on best-judgement assessment (Ground No. 3.1 to 3.2) 4. Erroneous taxation of sales tax (Ground No. 4.1 to 4.3). 5. Entire re-assessment proceedings invalid if the basis for re-opening assessment fail (Ground No. 5.1 to 5.4). 6. Erroneous adjustment u/s. 145A of the Act (Ground No. 6.1 to 6.4). 7. Short credit of prepaid tax (7.1 to 7.2). 3. Brief facts of the case are that assessee is a Company, engaged in the business of Software Consultancy, design and development services, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - has escaped assessment. Initiate proceedings u/s. 147 and issue notice u/s. 148 . 4. The assessee on receipt of reasons of reopening filed objection on 05.10.2010. In the objection, the assessee specifically pleaded that the tax liability to the extent of ₹ 1,88,98,732/-( Sales Tax refund) is offered for taxation for AY 2007-08, which is referred in the reasons of re-opening. The Assessing Officer (AO) proceeded with the re-assessment proceeding and brought the issue on taxability of sale tax of ₹ 1,88,98,732/- to the tax liability in the year under consideration. The AO further examined the deduction u/s 10A and concluded that the assessee has claimed deduction u/s 10A and was wrongly worked out, the excess deduction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending with the same AO. The assessment order in both the years was passed on 29.12.2010. It was argued that the assessee vide his application dated 05.10.2010 specifically brought in the notice of AO that the impugned sale tax liability of ₹ 1,88,98,732/- was offered by assessee for taxation for AY 2007-08. The Ld. AR of the assessee invited our attention to the copy of said letter/objection filed before AO, copy of which is available at page No. 124/125 of PB. The application/ letter dated 05.10.2010 is duly acknowledged.. The ld. AR submitted that the re-opening is bad-in-law. There was no tangible material on record, so that subsequent AO may make his belief about the escapement of income from assessment. The AO has no power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. In view of the decision of ACIT (Bangalore) dated 19.05.2005. The amount was credited in P L A/c, though it was required to be brought to tax. From the reasons recorded, it is apparent clear that nothing new material has came in the notice of AO, subsequently in the course of assessment proceeding. The assessee in the Note of Tax Audit Report has clearly mentioned this fact. Moreover, the assessee in its objection dated 05.10.2010 clearly stated that the Sales tax liability to the extent of ₹ 1,88,98,732/- was offered for taxation for AY 2007-08. The same AO taxed the Sale tax collected in earlier year in the AY 2007-08. As per our considered opinion the Revenue is not entitled to tax the same amount twice. The Hon ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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