TMI Blog2020 (1) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... s been brought on record at the time of reopening of the assessment and the A.O. wanted to correct the error in the original assessment order passed by the A.O. while initiating the re-assessment proceedings, we are of the view that reopening of the assessment is not valid in the facts and circumstances of the case. Considering the totality of the facts and circumstances of the case, we do not find any justification to sustain the reopening of the assessment. - Decided in favour of assessee. - ITA.No.6001/Del./2014 - - - Dated:- 21-1-2020 - Shri Bhavnesh Saini, Judicial Member And Shri O.P. Kant, Accountant Member For the Assessee : Shri Salil Kapoor, Advocate, Ms. Soumya Singh, Advocate And Ms. Ananya Kapoor,A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om this computed at loss of Rs.(-)35.02 crores vide re-assessment order under section 147/143(3) Dated 15.03.2013. 3. The assessee challenged the reopening of the assessment as well as addition on merit before the Ld. CIT(A). The Ld. CIT(A) noted that audit party has pointedout factual mistake with regard to addition on account of sale of fixed assets amounting to ₹ 2,45,35,280/-. Assessee has agreed for the addition, therefore, this addition was maintained and reopening of the assessment was upheld. The Ld. CIT(A), however, as regards addition of ₹ 2,81,48,000/- on account of foreign exchange loss deleted the addition. Appeal of assessee was partly allowed. 4. The assessee in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tead of initiating the re5 assessment proceedings. In support of his contention, he has relied upon the Judgment of Hon ble Bombay High Court in the case of Hindustan Unilever Ltd., vs., DCIT [2010] 325 ITR 102 (Bom.) in which it was held that power to rectify an Order of assessment under section 154(1) is adequate to meet a mistake or error in order of assessment. The A.O. must take recourse to that power as opposed to the wider power to reopen the assessment. 5. On the other hand, the Ld. D.R. relied upon the Orders of the authorities below and submitted that reopening have been done on the basis of audit report pointing-out factual mistake in the assessment, which assessee has ultimately agreed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004-05. The scrutiny assessment of M/s Alcatel South Asia Ltd for the assessment year 2005-06 was completed in December,2008 at a Loss of ₹ 40,29,18,340/- _On perusal of record it was observed that as per P L account, the assessee had claimed and was allowed the following deductions. i) Deduction of ₹ 1,22,67,640/- on account of loss on sale of fixed assets This item being capital in nature was required to be added back to the income of the assessee However, instead of adding back to the business income of the assessee, this amount was reduced from the total income in the computation sheet Hence, the omission resulted in underassessment of income by ₹ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reasons for reopening of the assessment. The A.O. on the basis of the material already available on record recorded the reasons for reopening of the assessment. Thus, assessee declared all primary facts at the stage of original assessment when assessment was completed under section 143(3) of the I.T. Act, 1961. The Hon ble Supreme Court in the case of Indian Oil Corporation vs., ITO [1986] 159 ITR 956 (SC) held that no case under section 148 is made-out when the facts were known all along with to the Revenue while making the original assessment . The Hon ble Supreme Court in the case of Associated Stone Industries Ltd., vs., CIT [1997] 224 ITR 560 (SC) held that assessee shall have to disclose only the primary facts. It is, thus, clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Allahabad High Court in the case of Kanpur Texel Pvt. Ltd., DCIT Another [2018] 406 ITR 353 (All.). The Hon ble Rajasthan High Court in the case of Vardhaman Industries [2014] 363 ITR 625 (Raj.) held that reasons must be based on new and tangible material. Notice based on documents already on record, not valid. The Hon ble Delhi High Court in the case of Techman Buildwell P. Ltd., vs., ACIT [2015] 370 ITR 771 (Del.) held that Assessing Officer s omission was the sole basis of notice under section 148. Notice under section 148 not valid. Since in the present case, the notice under section 148 have been issued after 04 years and no new and tangible material has been brought on record at the time of reopening of the assessment and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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