TMI Blog2018 (1) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... this difference was due to change in accounting of service tax. According to him, the assessee followed inclusive method in respect of the service tax, whereas M/s. Maruti Paper Ltd followed exclusive method of service tax and therefore, said party has not shown amount of service tax in the profit & loss account. CIT(DR) could not controvert this fact that said information was already available with the Assessing Officer. In our opinion, when the information was already available before the Assessing Officer in respect of arranger fee paid to M/s Maruti Papers Ltd., reopening the assessment on the basis of the same information certainly amount to change of opinion. We may like to emphasize here that in the reasons recorded there is no mention of any additional information received in respect of M/s Maruti Paper Ltd. - Decided against revenue - ITA No. 5485/Del/2014 - - - Dated:- 3-1-2018 - SH. AMIT SHUKLA, JUDICIAL MEMBER AND SH. O.P. KANT, ACCOUNTANT MEMBER Appellant by : Sh. Aparna Karan, CIT(DR) Respondent by : Sh. Ved Jain, Adv. ORDER PER O.P. KANT, A. M. This appeal by the Revenue is directed against order dated 11/07/2014 passed by the learned Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 28/03/2012 and served upon the assessee. In response, the assessee filed return of income on 25/04/2012. Thereafter, notices under section 143(2) and 142(1) of the Act were issued by the Assessing Officer. The case was then transferred to the another Assessing Officer under the charge of Commissioner of Income-tax (Central)-I, New Delhi, who again issued fresh notice under section 143(2) Act dated 15/01/2013 and commenced the assessment proceeding. The assessment was finally completed on 04/03/2013 disallowing sub- arranger fee of ₹ 68,99,954/- paid by the assessee to M/s Maruti Papers Ltd. In the impugned assessment order, the Ld. Assessing Officer has noticed that sub-arranger fee debited in the books of account of the assessee company was a sort of accommodation entry just to reduce the profit. The Ld. Assessing Officer brought to the notice of the assessee enquiries carried out by the Investigation Wing of Income Tax Department, Meerut (UP) and statement of director/authorised signatory of M/s Maruti Papers Ltd. The assessee furnished details of transaction, copies of invoice, copies of mandate and other documents related to the transaction and submitted that the arran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly be considered: 1. R.K. Malhotra ITO Vs Kasturbhai Lalbhai, Supreme Court, 1977, 109 ITR 537 (SC) The intimation which the Income-tax Officer received from the audit department would constitute information within the meaning of section 147(b). 2. Devi Electronics Pvt Ltd Vs ITO, Bombay High Court, 2016, 2017-TIOL-92-HC-MUM-IT The likelihood of a different view when materials exist of forming a reasonable belief of escaped income, will not debar the AO from exercising his jurisdiction to assess the assessee on reopening notice. 3. Amsa India Pvt Ltd Vs CIT, Delhi High Court, 2017, 2017- TIOL-603-HC-DEL-IT The department can reassess the returns furnished by the assessee if the AO has a reason to believe that the facts have a proximate link with the assessee's concealed income. 4. PCIT Vs Paramount Communication (P.) Ltd., Delhi High Court, 2017, 79 taxmann.com 409 (Delhi) Information regarding bogus purchase by assessee received by DRI from CCE which was passed on to revenue authorities was 'tangible material outside record' to initiate valid reassessment proceedings. 5. Ankit Financial Services Ltd. Vs DCIT, Gujarat High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period 1.4.2006 31.3.2007 shows that M/s. Maruti Paqpers Ltd. has credited the amount of ₹ 68,47,500/- on different dates in its books of account in respect of M/s. Maruti Papers Ltd., Shamli during the period 1.4.2006 to 31.3.2007 as under: S. No. Date Amounts 1. 31.07.2006 41,47,500 2. 3.8.2006 14,00,000 3. 31.1.2007 6,00,000 Total 68,47,500 Thus, the assessee company has debited excess amount of ₹ 52,454/- (Rs.68,99,954 - 68,47,500) of sub-arrangers/commission during the period of 1.4.2006 to 31.3.2007 relevant to A.Y. 2007-08/ In view of the above, I have reason to believe that the income of ₹ 52,454/- on account of excess amount of sub-arrangers fees/commission debited in assessee s books of account has escaped assessment on account of failure on the part of the assessee to disclose fully and truly all material facts necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. The decisions relied upon by the learned CIT(DR) are not relevant in the facts of the instant case. 8.1 In identical set of circumstances, the Tribunal (supra) in assessment year 2006-07 has already held the reassessment proceeding as invalid. The relevant finding of the Tribunal is reproduced as under 6. We have considered the rival arguments made by both the sides, perused the orders of the AO and Ld. CIT(A) and the paperbook filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the original return in the instant case was filed on 22.11.2006 which was processed u/s 143(1) accepting the returned income of ₹ 9,01,89,011/-. Subsequently, a search was conducted at the premises of the assessee on 26.04,2007 and the assessment order was passed u/s 153A/143(3) on 29.12.2009, determining the total income at ₹ 11,04,06,510/-. From the details furnished by the assessee in the paper book, we find the AO during the course of proceeding u/s 153A/143(3) had called for various details from the assessee including the issue of sub arranger fee paid. We find on the basis of the various details filed by the assessee, the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO cannot reopen the assessment in absence of any change in the material facts. 7.1 So far as grounds raised by the revenue are concerned, it has been mentioned that the reopening was made on the basis of independent information in the form of enquiry report of investigation wing suggesting that payment to M/s Maruti Paper Ltd., was bogus. However, reasons recorded shows that there was escapement of income to the-tune of ₹ 11,69,481/-. As mentioned earlier, the above amount is nothing but the service tax charged by M/s Maruti Paper Ltd. Since, all the-material facts necessary for completion of assessment were available in the proceedings u/s 153A/143(3) proceedings, therefore-, in absence of any tangible material available before him, the AO, in our opinion, cannot reopen the assessment on the basis of same set of facts. Reopening in the instant case is nothing but based on mere change of opinion on the same set of facts which is not permissible under law. The various decisions relied upon by CIT(A) fully support the case of the assessee. In view of our above discussion and in absence of any contrary material brought to our notice against the findings given by CIT(A), we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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