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TMI Blog2019 (4) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... ne another. The Appellant submits as under: 1. Order bad in law 1.1 At the outset, IBM India Private Limited (hereinafter referred to as 'the Appellant' or 'the Company') prays that the order dated March 31, 2018 passed by the learned Commissioner of Income-tax (Appeals) - 12, Bangalore [CIT(A)'], upholding the order passed under section 147 read with section 143(3) of the Income-tax Act, 1961 (`the Act'). be struck down as invalid, as the order is bad in law and on facts. 2. Lack of jurisdiction to initiate action under section 147 of the Act 2.1. The learned CIT(A) has erred in upholding the validity of the reassessment proceedings and failed to appreciate that the proceedings initiated under section 147 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision for property registration charges has already been charged to tax in the earlier assessment years and the said provision was reversed/ credited to P&L account during the AY 2004-05. 4. Levy of interest under section 234B 4.1. The learned CIT(A) has erred in not adjudicating on the ground raised by the Appellant that the learned AO has wrongly computed interest under section 234B(1) of the Act on total income determined on the reassessment order as against the tax determined in the regular assessment. 4.2. The learned CIT(A) has erred in not adjudicating on the ground raised by the Appellant that the learned AO has wrongly computed interest without considering the foreign tax credit claimed by the Appellant, thereby levying exces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection of the AO that the amount spent on Property Registration Charges is an expenditure in connection with acquisition of an immovable property and therefore, capital expenditure and hence, not allowable even u/s. 43B of IT Act. He submitted that because of these facts, the reopening is not valid. The ld. DR of revenue supported the orders of authorities below. 5. We have considered the rival submissions. This issue regarding reopening of assessment was decided by CIT (A) as per paras 3.2 to 3.5 of his order and these paras are reproduced hereinbelow for ready reference. "3.2 FINDINGS I have given my careful consideration to the arguments of the appellant and the contentions of the AO. It is seen from record that the assessee compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough in the year under consideration, it was shown as a reversal of provision, the TAR qualified this expense u/s 43B. In that regard, the disclosure was not full and true, Further, this issue was never examined during the course of the original assessment. Therefore, it is incorrect to say there is any change of opinion. 3.5 Considering the above, the action of the AO to reopen the assessment is upheld. This ground is therefore dismissed." 6. From the above paras reproduced from the order of CIT (A), it is seen that as per tax audit report, it was stated that this claim is u/s. 43B and this is accepted factual position that no payment was made in the present year and therefore, deduction u/s. 43B is not allowable in the present year u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year by way of debit to provision account and credit to rent account. He submitted that since the provision made in the earlier year is already disallowed in the earlier year and in the present year, there is reversal of such provision which is already disallowed in the year of provision, amount credited to the rent account in the present year cannot be brought to tax in the present year and therefore, disallowance made by the AO is not sustainable. The ld. DR of revenue supported the orders of authorities below. He also submitted that even if this claim of the assessee is accepted then for factual verification, the matter should be restored back to the file of AO. 8. We have considered the rival submissions. We find that the disallowa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is is found that this amount of Rs. 96 Lakhs is credited in the rent account in the present year on account of reversal of provision which was made in earlier year and the said provision in earlier year was already disallowed in the respective year, then reversal of such provision cannot be brought to tax in the year of reversal since it has already been brought to tax in the earlier year being the year of provision. Hence if the assessee can establish these factual aspects, then no disallowance is called for in the present year. Ground no. 3 is allowed for statistical purposes. 9. In the result, the appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open court on the date mentioned on the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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