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TMI Blog2016 (3) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowance of MICR charges of Rs. 23,94,249/- u/s 40(a)(ia) of the I.T. Act as the decision of the Hon'ble Supreme Court relied on by him relates to section 201 of the Income Tax Act. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the disallowance of Rs. 58,94,437/- u/s. 40(a)(ia) of the I.T. Act as the decision of the Hon'ble Supreme Court relied on by him relates to section 201 of the Income Tax Act. 3. The appellant therefore, prayed that the order of the CIT(A) be set aside and that of the Assessing Officer be restored. 3. In ITA No. 2194/Mum/2013, the assessee has raised following grounds of appeal: 1. Reopening of assessment: The learned CIT(A),erred in justifying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 263,48,14,645/- u/s 115JB/-. Order u/s 143(3) was passed on 30/11/2007 assessing the total income of Rs. 1796,96,08,020/- 2. It is seen that in order u/s 143(3) dated 30/11/2007, the amount of Rs. 170790.09 lakhs was computed as total expenses towards earning of exempt income & this amount was not added back to book profits u/s 115JB as per explanation 1(f). Further, as per CIT(A) order dated 31/03/2009, the expenses disallowable u/s 14A have been computed at Rs. 106,26,80,655/-hence the amount of Rs. 105,06,70,665/- has to be added back to book profits u/s 115JB (Rs. 1,20,09,990/- having been added back already in book profits returned by assessee). 3. Information vide letter No. SRT/IT/TDS-Intimaticn-34/2009-10 Dated 10/03/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment has been re-opened or there is a failure on the part of assessee to disclose fully and truly all the material facts necessary for the assessment. The objection of assessee was rejected. And order of re-assessment dated 05.09.2011 passed u/s. 143(3) r.w. section 147 of the Act, wherein AO made disallowance u/s. 14A, 40(a)(ia) of the Act and levied interest of Rs. 58,94,437/- u/s. 234D of the Act. 6. The assessee filed appeal before the CIT(A) challenging the validity of re-opening and other addition/disallowance u/s.14A and disallowance u/s. 40(a)(ia) of the Act. The CIT(A) after hearing the submission of the assessee, confirmed the re-opening, and disallowance u/s. 14A and partly deleted the addition u/s. 40(a)(ia) in the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om AO at Surat vide letter dated 10.03.2010 that assessee had paid a sum of Rs. 23,94,249/- as MICR charges to SBI MICR Centre without deduction of TDS u/s 194J of IT. Act, 1961. Hence, Assessing Officer had reasons to believe that there was a failure on the part of assessee to add back a sum of Rs. 23,94,249/- u/s 40(a)(ia) of I.T. Act, 1961. Another reason for reopening the assessment was that CIT(A) had decided assessee's appeal vide order dated 31/03/2009 and concluded in the order that in view of assessee's claim for exemption of dividend income u/s 10(34) of IT. Act, 1961, expenses of Rs. 106,26,80,655/- relatable to earning of such income were disallowable u/s 14A of IT. Act, 1961 read with rule 8D of I.T. Rules, 1962 and sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully and truly necessary for assessment of that AY, so as to establish the vital link in this safeguard against the arbitrary re-opening of the concluded assessment" 10. In Titanor Components Ltd. Vs. ACIT, reported vide 343 ITR 18, Hon'ble jurisdictional High Court categorically held "that the Power conferred by s. 147 does not provide a fresh opportunity to the AO to correct an incorrect assessment unless the mistake in the assessment so made is the result of a failure of the assessee to disclose fully and truly all material facts necessary for assessment-Where the AO does not record that there is a failure to disclose fully and truly all material facts necessary' for assessment; he would not be entitled to proceed under s. 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mething which was within the knowledge of the AO". 11. The 2nd Proviso of section 147 specially referred in respect of those cases including financial interest which are located outside in India, chargeable to tax and escaped assessment for any AY. However, the 1st Proviso attached with section clearly cast a duty mandate on the AO to find out if the particular word disclosed fully and truly necessary for his assessment for that AY, the reasons recorded by the AO "the words absolutely missing in para-4 & 5 of the reasons recorded that as to which fact or material was not disclosed by the assessee in its return of income". 12. Admittedly, there is no details given by AO as to which the fact or material was not disclosed by the assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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