TMI Blog2022 (3) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO before assuming jurisdiction u/s 148 - It is clear that reassessment proceedings are initiated on same set of facts as existed in the course of original assessment and reasons so recorded clearly show that it is re-application of mind on same set of facts. A perusal of the reasons recorded for reopening assessment shows that the entire exercise has been done by the Assessing Officer on the basis of assessment of GBN for AY 2007-08 wherein an amount on account of royalty paid to the assessee was found. The amount accrued by the payer in its books has no relevance as it is a trite law that payment may be treated differently in the books of payer and the payee. We have no hesitation in holding that assumption of jurisdiction u/s.147 of the Act by issuing of notice u/s.148 of the Act is bad in law and assessment order so framed is liable to be quashed. We, accordingly, quash the assessment order. - Decided in favour of assessee. - ITA No. 1274/DEL/2015 - - - Dated:- 11-3-2022 - SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER For the Appellant : Ravi Sharma, Adv. For the Respondents : Anupama Anand, CIT-DR ORDER Per N. K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and assessed to tax. 5. Without prejudice to grounds at 2 and 3 above, on the facts and circumstances of the case and in law, having taxed the royalty amounting to INR 2,25,19,145/- from GBN in AY 2007-08, the Ld. AO/Ld. DRP erred in not granting credit of taxes deducted at source on said royalty as per provisions of Section 199 of the Act in the AY 2007-08. 6. Without prejudice to grounds at 2 above, on the facts and circumstances of the case and in law, the Ld. AO erred in not allowing the complete credit of taxes deducted at source without assigning any reason. 7. Without prejudice to grounds at 2 above, on the facts and circumstances of the case and in law, the Ld. AO erred in levying interest under Section 234B of the Act. 8. Without prejudice to grounds at 2 above, on the facts and circumstances of the case and in law, the Ld. AO erred in initiating penalty proceedings under Section 271(1)(c) of the Act. 3. The first challenge which goes to the root of the matter is that the reassessment order is bad in law and void ab initio. 4. The representatives of both the sides were heard at length, the case records carefully perused. Relevant documentary evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taxed accordingly, after considering the material on record. It was also brought to the notice of the Assessing Officer that the difference between the amount reported by the assessee and GBN is due to the archival amount payable by GBN to the assessee. 10. The archival amount is payable by GBN to the assessee in consideration for archive content licensed to GBN. This amount was payable only after expiry of three years from the date of execution of the News Services Agreement. It was strongly contended that all material facts necessary for assessment were fully and truly disclosed during the course of original assessment. Therefore, initiation of reassessment proceedings is not in consonance with the provisions of section 147 of the Act. 11. The contentions of the assessee were dismissed by the Assessing Officer who proceeded by computing the total assessed income at ₹ 5,09,05,644/-. 12. Objections of the assessee did not find any favour with the DRP. 13. We have carefully perused the orders of the authorities below. It is not in dispute that during the course of original assessment proceedings itself the assessee has furnished detailed reply in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pheld the Full Bench decision of the Hon'ble Jurisdictional High Court of Delhi in 256 ITR 1 and has held as under: ....however, one needs to give a schematic interpretation to the words reason to believe failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to reopen assessments on the basis of mere change of opinion , which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of change of opinion as an inbuilt test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to reopen, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the beli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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