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TMI Blog2019 (12) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... d the C.O. No.09/Chny/20119. 2. M/s. Shri Balaji Communication, the assessee is a firm doing business of buying and selling film satellite copy rights from 2006 onwards. Its assessment for the Assessment Year 2008-09 was completed u/s.143(3) on 28.12.2010. Subsequently, the Assessing Officer reopened the assessment u/s.147 by issuing notice u/s.148 of the Act and completed the reassessment u/s.143(3) r.w.s147 on 30.03.2016 treating the film rights purchased by the assessee as an asset, intangible one, and accordingly added the purchase price of the film rights to the returned income but allowed depreciation at the rate of 25% of the purchase value. 3. Aggrieved, the assessee filed an appeal before the Commissioner of Income Tax (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Income Tax (Appeals) in as much as it is against the Cross Objector is opposed to law and contrary to the facts and circumstances of the case. 2. Reopening of Assessment u/s.147: 2.1. The Commissioner of Income Tax (Appeals) grossly erred in upholding the reopening of assessment u/s.147. 2.2. Reopening beyond 4 years barred by Limitation: 2.2.1. The Commissioner of Income Tax (Appeals) ought to have appreciated that since the reopening is beyond the period of 4 years from the end of the assessment year, the same is barred by limitation. 2.2.2. The Commissioner of Income Tax (Appeals) ought to have appreciated that since the period of limitation available for reopening of assessment is four years as prescribed in proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to have appreciated that the Assessing Officer erred in exercising jurisdiction u/s.147 using the same materials made available before him during the course of scrutiny assessment u/s.143(3) of the Income Tax Act, 1961. 2.3.2. The Commissioner of Income Tax (Appeals) ought to have appreciated that First proviso to section 147 bars the reopening the Assessment in the circumstances of the Cross Objector's case. 2.3.3. The Commissioner of Income Tax (Appeals) ought to have appreciated that the Cross Objector had disclosed the entire details pertaining to purchase and sale of film satellite rights in the course of scrutiny assessment proceedings u/s.143(3) and this amounts to full and true disclosure of all materials facts necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aped assessment that too when there is no default or failure of assessee to disclose the material facts fully and truly necessary for assessment. 2.4.6. The Commissioner of Income Tax (Appeals) ought to have appreciated that since no new material had come to the possession of the Assessing Officer to have "reason to believe" and the reopening being based only on the materials already available on record amounts to mere change of opinion. 2.4.7. The Commissioner of Income Tax (Appeals) therefore ought to have held that the reopening of assessment by the Assessing Officer is bad, illegal and invalid toto as the same is based on mere change of opinion and not on reason to believe. 2.5. Doctrine of Merger: 2.5.1. The Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, since the partner was unwell, he was not able to forward the same immediately to the Counsel and therefore the appeal papers were handed over to the Counsel on 19.02.2019. Thereafter, the Counsel prepared the Cross Objection and filed the same, due to which the delay of 116 days occurred which was not deliberate and neither willful nor wanton. Therefore, it was prayed that the delay of 116 days may be condoned and the Cross Objection be admitted and due justice is rendered. 5. We heard the rival submissions and condone the delay in filing the cross objection in the interests of justice. 6. The learned Departmental Representative presented the case on the lines of grounds of appeal. Per contra, the Authorized Representative ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) deleted the additions made u/s.40(a)(ia) of Rs. 2,71,19,000/-. However, on appeal by Revenue, the Income Tax Appellate Tribunal restored the addition made u/s.40(a)(ia). 3. It was noticed that in assessment: (a) The revised income as per revised return of Rs. 1,27,12,850/- was not added to the total income. While completing the original assessment. (b) The film rights purchases to the tune of Rs. 25,71,19,000/- was to be treated as intangible assets instead of claiming as revenue expenditure by the assessee." 7.2 From the above, it is clear that the Assessing Officer has not recorded any failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for that assessment year. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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