TMI Blog2020 (9) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... ession 'seems' by stating that though the assessee seems to be qualified under clause (a) to Section 43(5), since they had not complied with condition ('d') they are not entitled to any relief. As pointed out earlier reopening, based upon a change of opinion or a review of decision taken by the Assessing officer, is impermissible. Further the interpretation given by the Assessing Officer to Section 43(5) of the Act is wholly untenable.- Decided against the Revenue - Tax Case Appeal Nos.535 and 536 of 2018 - - - Dated:- 16-9-2020 - Mr. Justice T.S. Sivagnanam And Mrs. Justice V. Bhavani Subbaroyan For the Appellant in both Appeals : Mr.T.R.Senthil Kumar Senior Standing Counsel assisted by Ms.K.G.Usha Rani For the Respondent in both Appeals : Mr.T.Pramodkumar Chopda JUDGMENT T. S. SIVAGNANAM, J. These appeals, filed by the Revenue, under Section 260A of the Income Tax Act, 1961 ('the Act' for brevity) is directed against the order dated 12.09.2017 passed by the Income Tax Appellate Tribunal Bench 'A' Chennai ('the Tribunal' for brevity) in I.T.A.No.3345/Mds/2016 and C.O.No.15/Mds/2017 for the Assessment Year under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer was convinced with the explanation offered by the assessee insofar as the first reason, pertaining to the alleged excess purchase charges of ₹ 22,34,52,450/-. In the order of reassessment dated 27.03.2015 in paragraph no.6.1, the Assessing Officer has recorded that the purchases to the tune of ₹ 22,34,52,450/- was done through MCX and the same is found to be in order. 4. With regard to the second issue namely the correctness of the debit of ₹ 4,18,209/- done by the assessee in the P L A/c as 'previous year sales tax payment', we informed by Mr.T.R.Senthikumar, learned Senior Standing Counsel for the appellant / Revenue that the Assessing Officer has dropped proceedings by putting up of Note 'not to the assessee' which is apprehended to the Assessment Order dated 27.03.2015. 5. With regard to the third reason for reopening namely debit of ₹ 8,26,576/- on 'Trademark expenses', the Assessing Officer granted partial relief to the assessee by allowing depreciation of 25% and disallowed ₹ 11,250/- and added back the same to the total income. So far as this issue is concerned, the assessee accepted the reassessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Electronics Private Limited Vs. Assistant Commissioner. 7. In our considered view the said decision could not have been applied to the facts of the instant case because the word 'or' used in clauses (a) to (ha) in Explanation to Section 115J(1A) was the subject matter of consideration in the said case while interpreting as to whether 'or' should be conjunctive or disjunctive, and it was held that it is necessary to read 'and' in the place of 'or' and vice versa. Plain reading of Section 115J(1A) and Clauses (a) to (d) thereunder will clearly shows that each one of them is a separate and different transaction. Though the Assessing Officer agrees that the assessee's transaction would fall under Clause a to Section 43(5) of the Act, gives the interpretation that each of the clauses are to be considered cumulatively. 8. In our understanding and on a plain reading of the Statute, we find that each of the clauses under Section 43(5) deals with separate type of contracts / transactions. Therefore, there is no room to give any interpretation to read the expression 'or' as 'and'. Be that as it may, on facts, the CIT(A) examined as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst instance before the Assessing officer in the scrutiny assessment. In such circumstances, the attempt of the Assessing officer by invoking power under Section 147 of the Act is infact to review the earlier Assessment order. 12. It was argued by Mr.T.R.Senthilkumar, learned Senior standing counsel that the Tribunal dismissed the Revenue's appeal and allowed the assesse's cross objection solely on the ground that the assessment was reopened after a period of four years and there is no fresh material. 13. On a reading of the impugned order passed by the Tribunal and as rightly pointed out by Mr.Pramodkumar Chopda, that alone was not only reason for the Tribunal to dismiss the appeal filed by the Revenue. The Tribunal also pointed out that the assessee had fully and truly disclosed all materials at the time of original assessment under Section 143(3) of the Act and no fresh materials had surfaced for the assessment to be reopened. 14. Mr.T.R.Senthilkumar, learned Senior Standing Counsel referred a decision in the case of Rabo India Finance Private Limited vs. Deputy Commissioner of Income Tax [2013 (34) taxmann.com 228 (Bombay)]. In the said decision it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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