TMI Blog2020 (1) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court and the Tribunal was reversed and the issue was decided in favour of the Revenue. That further the said order being ex-parte, the assessee had filed an curative petition before the Hon‟ble Supreme Court and the Hon‟ble Supreme Court had recalled the ex-parte order to be now heard on merits and had directed for listing the said appeal. Thereafter, whether the Hon‟ble Supreme Court had heard the appeal or decided the appeal on merits is not coming out from the facts on record nor the Ld. DR was in a position to state the correct legal scenario. The Ld. DR vehemently contended that technically as on date, the matter stands in favour of the Revenue. However, it has to be ascertained whether after recalling the ex-parte order, the Hon‟ble Supreme Court had heard the appeal on merits or not or has passed any order that has to be considered since it will have the effect on all these appeals. More so, as evident from the aforesaid facts after decision of the Tribunal for assessment year 2008-09, lot of events has taken place and these events and the legal developments have to be ascertained before arriving at any decision. In the interest of justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. At the time of hearing, one adjournment petition has been filed in all these appeals and the same was rejected and cases were heard on merits after recording the submissions of the Ld. DR since neither the assessee nor his Authorized Representative was present before us. 4. The Ld. DR submitted that ITA No.283/NAG/2015 arising out of the regular assessment u/s.143(3) of the Income Tax Act, 1961 ( hereinafter referred to as the Act‟) for assessment year 2009-10; ITA No.284/NAG/2015 arising out of the regular assessment u/s.143(3) of the Act for assessment year 2010-11 and ITA No.34/NAG/2015 arising out of regular assessment u/s.143(3) of the Act for the assessment year 2011-12 pertains to the issue on disallowance u/s.14A r.w.r 8D of the Income Tax Rules, 1962. The Ld. DR further submitted that ITA No.260/NAG/2015 is arising out of reassessment proceedings u/s.143(3) r.w.s.147 of the Act for assessment year 2009-10 pertains to the issue of determination of book profit u/s.115JB of the Act. First, we would take up Revenue‟s appeal in ITA No.34/NAG/2015, ITA No.283/NAG/2015 and ITA No.284/NAG/2015 for the assessment years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year 2008-09 in assessee‟s own case, the Revenue had preferred an appeal before the Hon‟ble Jurisdictional High Court and the Hon‟ble High Court also had given relief to the assessee. That being further aggrieved, the Revenue had preferred an appeal before the Hon‟ble Supreme Court and the Hon‟ble Supreme Court had passed an ex-parte order wherein the findings of the Hon‟ble High Court and the Tribunal was reversed and the issue was decided in favour of the Revenue. That further the said order being ex-parte, the assessee had filed an curative petition before the Hon‟ble Supreme Court and the Hon‟ble Supreme Court had recalled the ex-parte order to be now heard on merits and had directed for listing the said appeal. Thereafter, whether the Hon‟ble Supreme Court had heard the appeal or decided the appeal on merits is not coming out from the facts on record nor the Ld. DR was in a position to state the correct legal scenario. The Ld. DR vehemently contended that technically as on date, the matter stands in favour of the Revenue. However, it has to be ascertained whether after recalling the ex-parte order, the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the course of hearing of appeal. 11. The brief facts in this case are that the return of income declaring income of ₹ 4,12,49,500/- was filed on 27.09.2008. The case was taken up for scrutiny and assessment was finalized on 24.11.2011 determining total income of ₹ 6,97,07,570/- and book profit u/s.115JB at ₹ 38,76,87,470/-. Subsequently, the Assessing Officer issued notice u/s.148 of the Act on 16.09.2014 and re-opened the assessment as he had reasons to believe that income chargeable to tax has escaped assessment. During the course of reassessment proceedings, the assessee objected to the said action of the Assessing Officer and submitted that since the original assessment has been completed u/s.143(3) of the Act and the same is sought to be reopened after 4 years from the end of the relevant year, the assessment cannot be reopened unless it is established that the alleged escapement of income was due to failure of the assessee to disclose fully and truly all the material facts necessary for assessment. The Assessing Officer however, did not agree with the submissions of the assessee and came to the conclusion that the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew his order. 16. Thus, the Courts have uniformly held that the provisions of section 147 of the Act cannot be used to review the order. Where, between the date of the order of assessment sought to be reopened and the date of formation of opinion by the Assessing Officer, nothing new has happened, no new material has come on record, no new information has been received, it is merely a fresh application of mind by the Assessing Officer to the same set of facts and the reason that has been given is that some material which was available on records while assessment order was made, was inadvertently excluded from consideration, it will amount to re-opening of the assessment merely because there is change of opinion. 17. In the case of Cartini India Ltd. Vs. Addl. CIT Anr. (2009) 314 ITR 275 ( Bom.), wherein the Court observed that what section 147 of the Act contemplates, is the existence of material on record on the basis of which a prima facie opinion could be formed by the Assessing Officer that any income chargeable to tax has escaped assessment and not the material on record on the basis of which a final decision has already been taken at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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