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TMI Blog2021 (8) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... s made to BASF USA and no addition in respect of the Forex Loss. 3. The learned counsel for the petitioner made a submission that the petitioner has submitted all the relevant books of accounts pertaining to the Assessment Year and provided all informations sought for. Accordingly, the assessment order has been passed. While so, the first respondent issued a notice under Section 148 of the Act on 29.03.2018 with an allegation that the income of the petitioner has escaped assessment. The petitioner filed a return of income in response to the notice and requested for furnishing of reasons for reopening of assessment. The reasons were furnished and objections were filed and thereafter, the objection was disposed of by the first respondent and challenging the said disposal order, the present writ petition is filed. 4. The learned counsel appearing on behalf of the writ petitioner mainly contended that reopening of assessment is perverse in the present case as there is no new tangible materials available for the Assessing Officer to invoke the powers conferred under Section 147 of the Act. It is a case of change of opinion, in view of the fact that the issues raised in the reason for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, wherein, in Point No.8, the petitioner has stated that "Forex loss details and declaration to the effect that no capital exp is included - Annexure VIII". Referring Annexure VIII, the learned Junior Standing counsel reiterated that the materials available on record are unconnected with the earlier adjudication made and further, the Assessing Officer, while considering the return of income, has not adjudicated these aspects. 9. Pertinently, the learned Junior Standing counsel referred the Appellate authority's order dated 31.01.2018, wherein the facts of the case are stated as under: "2. Brief facts of the case: The appellant is engaged in the business of manufacture and sale of catalysts and catalytic convertors for automobile manufactures in India. Assessment u/s.143(3) has been completed for A.Y.2011-12 after disallowing payments made to BASF Malaysia to the extent of Rs. 1,08,78,548/- towards shared legal / administrative services u/s.40(a)(i) for failure to deduct tax at source u/s.195. Further, a sum of Rs. 4,28,18,719/- paid by the appellant to BASF SE, Germany under a Cost Sharing Agreement has also been disallowed for failure to deduct tax at source." 10. The abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department is a party. Such an objection deserves no consideration. 13. The order impugned, disposing the objections filed by the petitioner would reveal that the respondent has considered all the objections raised by the petitioner on issue basis. The specific contention raised by the assessee is that the issue was pending before ITAT and therefore, under third proviso to Section 147 of the Act, reopening cannot be made. However, Revenue raised a point that the deduction of tax was not made for payments made to BASF Corporation at USA. What was adjudicated before the Appellate authority was about the payments made to BASF Corporation, Malaysia. 14. The learned Junior Standing counsel relied on the findings made in the order impugned and contended that the issues raised are dealt with on merits and rejected by the competent authority. The authority cannot exceed with reference to the other aspects raised and it is for the assessee to submit the materials available with the petitioner by participating in the process of reassessment. Whatever available on record and the basis for reopening of assessment as well as the objections raised were taken into consideration for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hird proviso to Section 147 of the Act. 17. Adopting the principles of purposive interpretation, the proviso clauses are provided with specific purpose, enabling the Assessing Officer to cull out new materials, informations, from and out of the issue, which all are pending before the Appellate authority with reference to an assessment order already passed. The legislative intention is not to deprive the Revenue from reopening the assessment if any new materials are identified from and out of the issue, which were not the subject matter of the appeal. Issue may be one and the same, but the materials collected may be different and distinct and was not the subject matter of the appeal. Thus, the distinctions are very important for the purpose of reopening of assessment by the authority competent. 18. In the present case, the reasons furnished for reopening of assessment would reveal that the assessee has made payments to Associated Enterprise for shared service/cost sharing expenses. As per Attachment 6B to Form 3CEB, there is an entry for payment of Rs. 3,72,07,000/- to BASF Corporation, USA, but TDS was not made u/s.195. 19. The facts of the case as narrated in the Appellate orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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