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TMI Blog2018 (8) TMI 1619X X X X Extracts X X X X X X X X Extracts X X X X ..... es Limited (now amalgamated with Mylan Laboratories Ltd w.e.f 01-04-2014) is engaged in the business of manufacturing of active pharmaceuticals ingredients and their intermediates. For the AY. 2008-09, it filed a return of income on 29th November 2008 admitting an income of Rs. 12,36,37,010/- under normal provisions of the Income Tax Act [Act] and book profit of Rs. 27,57,66,354/- u/s. 115JB of the Act. Since assessee transacted with Associated Enterprises (AEs), the case was referred to Transfer Pricing Officer (TPO), Hyderabad in terms of the provisions of Chapter X of the Act. The TPO vide order u/s. 92CA dated 21-10-2011 after a detailed examination of the international transactions, made an adjustment of Rs. 33,91,00,000/- u/s. 92C of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2CA dt. 29-10-2010 for the AY. 2007-08 disallowed the depreciation alleging that the payment failed the benefit test. The TPO for the AY. 2008-09 vide order dt. 21-10-2011 u/s. 92CA did not canvas any disallowance. In other words TPO did not follow his own order for the earlier year. 2.3. Assessee submitted that since the AO already had the complete information with regard to the depreciation claim made by assessee in respect of DMF & Technical know-how, he cannot revisit the matter once again to rectify the same under the garb of the Sec.147 as it would not be construed as a reason to believe for him to initiate the reassessment proceeding but amount to mere change of the opinion, a position not permissible under the statute. Assessee rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier years. The CIT(A) while allowing depreciation on intangibles, refused to intervene in the matter of re-assessment. 3. On the issue of reopening of assessment, Ld. CIT(A) held as under: "4.3 After carefully considering, it is observed that the Hon'ble ITAT in the appellant's own case vide its order in ITA No.840/Hyd/2012 for the A.Y. 2006-07 dated 16-01-2015 held that, "as AO has passed the assessment order after examining all the facts and evidences and after proper application of mind relating to the transaction of know-how and DMF, the assessment order cannot be revised u/s 263 of the Act by treating it as erroneous and prejudicial to the interests of revenue. In this context, we rely upon the decision of Hon'ble AP Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Ld.CIT(A) herself has allowed the grounds of assessee on merits which the Revenue is contesting. Since the very basis for reopening the assessment is based on the information already on record and since this was already examined by the AO in the regular proceedings u/s. 143(3), we are of the opinion that the reopening of assessment is not based on any tangible material but only on the change of opinion on the existing material, for which the AO has no power to do so. The principles laid down by the Hon'ble Supreme Court clearly applies to the facts of the case. Therefore, we modify the order of the CIT(A) and allow the grounds of assessee. In a way this issue is also academic since Ld. CIT(A) allowed the assessee contentions on merit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee by the decision of the Tribunal in assessee's own case for A.Y. 2009-10 rendered vide its order dated 25-03-2015 passed in ITA No.234/Hyd/2014. A copy of the said order is placed on record before us and perusal of the same shows that the order passed by the learned CIT u/s. 263 for A.Y. 2006-07 on this issue was set aside by the Tribunal vide order dated 16-01-2015 passed in ITA No.840/Hyd/2012 and consequential order passed by the AO u/s 143(3) read with section 263 was also treated by the Tribunal as non-est in the eye of Law vide its order dated 20-01-2015 passed in ITA No. 1306/Hyd/2014. Taking note of these developments, the Tribunal vide order dated 25-03-2015(supra) in ITA No.234/Hyd/2014, deleted the similar disallowan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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