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TMI Blog2019 (10) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the case. 2. The Commissioner of Income Tax (Appeals) erred in confirming the reopening of the assessment u/s 147 as the appellant has furnished all the materials and particulars fully and truly while completing the assessment u/s 143(3). 2.1. The Commissioner of Income Tax (Appeals) ought to have appreciated that addition made in the reassessment has arisen only due to change of opinion and not on account of concealment of any particulars by the Appellant; hence the order is to be quashed as being without jurisdiction. CIT Vs. Kelvinator of India Ltd- 320 ITR 561 (SC). 3. The Commissioner of Income Tax (Appeals) erred in holding/Confirming that the amount received by MI s. Sornammal Education Trust was nothing but the amount received by appellant and his wife for settling the dispute with respect to the sale of shares and compensation received. 3.1 The Commissioner of Income Tax (Appeals) ought to have appreciated that the payment was not part of the consideration paid by Randstad to the promoters but a voluntary payment made to M/s. Sornammal Education Trust as the word used in the 'goodwill' paragraph is a onetime donation to the DISHA. 3.2 The Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2012 confirmed the action of the Assessing Officer. Even on further appeal before the Tribunal came to be dismissed vide order dated 20.12.2012 in ITA No. 1776/Mds/2012 for assessment year 2009-2010. 6. While matter stood thus, the Assessing Officer had come to know that M/s. Ranstand Holdings, NV, Netherlands had paid a sum of Rs. 6,40,09,975/- on 1st September, 2008 to Sornammal Educational Trust, Chennai in which assessee is a trustee. According to the Assessing Officer, this payment is actually due to the assessee and his wife Ms. Hemalatha Rajan and formed an opinion that income escaped assessment and issued notice u/s.148 of the Act on 04.04.2013 and it appears that assessee had not responded to the said notice and accordingly, the Assessing Officer had proceeded to frame assessment after furnishing reasons recorded for issuance of reassessment notice. On receipt of the reasons recorded, assessee had filed objections that reassessment proceedings are prompted by mere change of opinion and therefore very initiation of reassessment proceedings is invalid in law. The Assessing Officer rejecting the said argument had proceeded with framing of assessment order u/s.143(3) r.w.s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtmental Representative placed reliance on the orders of lower authorities. 11. We heard the rival submissions and perused the material on record. 12. Grounds No.1 & 4 are general in nature therefore, does not require any adjudication. 13. Ground of appeal No.2 challenges the very validality of reassessment proceedings. One of the contention advanced on the validality initiation of the reassessment proceedings is that assessment was reopened by mere change of opinion and no new tangible material were brought on record by the Assessing Officer suggesting escapement of income to tax. This issue is to be adjudicated with reference to the reasons recorded by the Assessing Officer by issuance of reassessment notice u/s.148 of the Act. The Assessing Officer had extracted reasons recorded for issue of notice u/s.148 of the Act at para 1 of the assessment order. From the reasons so recorded it is clear that subsequent to the completion of the assessment u/s.143(3) of the Act vide order dated 27.12.2011, the Assessing Officer had come to know during the course of assessment proceedings of Ms. Hemalatha Rajan for the assessment year 2010- 2011 that M/s. Ranstand Holdings, NV, Netherlands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for forging the right to sue. These two facts would suggest that MOU was very much part of record of the original assessment proceedings. However, there was no discussion in the assessment order as regards to the contribution of donation by the M/s. Ranstand Holdings, NV, Netherlands to Sornammal Educational Trust, Chennai, in terms of goodwill clause of the MOU. Even though MOU was referred to by the Assessing Officer in the assessment order, there is nothing on record to show that the issue of taxability of contribution of donation was raised and decided in favour of the assessee company. It is settled proposition of law as held by Hon'ble Supreme Court in the cases of Kalyanji Mavji & Co vs. CIT, 102 ITR 287 and CIT vs. A. Raman and Co, 67 ITR 11 that ''to inform means'' to '' to impart knowledge'' and the detail available to the ITO in the papers filed before him does not by its mere availability become an item of information. It is transmuted into an item of information in his possession only if, and only when, its existence is realized and its implications are recognized. Where the ITO had not in the original assessment proceedings applied his mind, the re-assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llion to Disha in the event that it can reach quick agreement about the above. The publicity and the link to Randstad's CSR policy will be limited and must be agreed with Frans Cornelis, Managing Director group marketing & communications''. 15. From the reading of the above clause, it is clear that goodwill is not part and parcel of compensation paid to the assessee and his wife by Ranstand Holdings, NV, Netherlands and it is separate and distinct transaction and voluntary payment. The fact that contribution was approved by the Government of India under Foreign Contribution Act confirming the position. It prima facie proves that it is a voluntary contribution. Further, the mere fact that assessee and his wife are trustees in the trust does not ipso facto prove that they are beneficiaries of this fund nor there is no material on record brought by the Assessing Officer to say that the money was diverted to the trust by the assessee and his wife. There was no tangible material brought on record by the Assessing Officer to establish collusion in the transaction. Therefore what is apparent should be believed unless and until the contrary is proved in the light of the judgment of Hon ..... 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