TMI Blog2020 (8) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... hange of opinion. Powers u/s 147 of the Act can be exercised by the AO provided there is tangible material to come to the conclusion that there is escapement of income from assessment. In our considered view, the AO had no tangible material to come to the conclusion that income of the assessee has escaped assessment. Thus we hold that since the AO had initiated reassessment proceedings in the present case on the basis of change of opinion, the Ld. CIT(A) has wrongly upheld the action of the AO. We, therefore, allow the legal ground raised by the assessee and set aside the order passed by the Ld. CIT(A) holding the notice u/s 148 read with section 147 of the Act and the subsequent proceedings as void ab initio.- Decided in favour of assessee. - ITA No. 6357/MUM/2017 (Assessment Year: 2009-10) - - - Dated:- 28-8-2020 - SHRI M. BALAGANESH (AM) AND SHRI RAM LAL NEGI (JM) Aassessee by : Shri Dr. K. Shivram/Rahul Hakani (ARs) Revenue by : Shri Amit Pratap Singh / Mohd. Rizwan (DRs) O R D E R PER RAM LAL NEGI, JM This appeal has been filed by the assessee against the order dated 11.08.2017 passed by the Commissioner of Income Tax (Appeals)-47 (for short th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. CIT (A) erred in not only upholding the additions made in reopened assessment on issues not listed in the reasons recorded, but also, enhanced such additions made. 4. The Ld. CIT (A) erred in upholding the action of the ld. Assessing Officer in making addition on the basis of statements of various persons recorded during the course of survey under section 133A of the Act on 13.03.2013 without appreciating the fact that such recorded statement does not have any legal sanctity and cannot be relied upon. 5. The Ld. CIT (A) erred in upholding the action of the ld. Assessing Officer in making an addition of ₹ 49,37,659/- on account of alleged non genuine revenue expenses, despite the fact that: There was no disclosure of any bogus revenue expenses made during the survey u/s 133A dated 13.03.2013 relating to the subject A.Y. 2009-10. The Hon ble Settlement Commission in the appellant s own case had vide order dated 30.09.2015 has accepted that M/s Great Spirits Marketing and M/s S S Enterprises are genuine parties. 6. The Ld. CIT (A) erred in upholding the disallowance of depreciation on astrological fees (Architectural Fees) amounting to ₹ 25,38,823/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r business purposes and hence disallowance may be deleted. 3. The Learned CIT (A| erred in disallowing packing charges of ₹ 2,19,566/- paid to Sai Enterprises without appreciating that same was paid wholly and exclusively for business purposes and hence disallowance may be deleted. 4. The Learned CIT (A) erred in disallowing promotional exhibition expense of ₹ 11,23,600/- without appreciating that said expenses are incurred for brand promotion and are incurred wholly and exclusively for business purposes and hence disallowance may be deleted. 5. The Learned CIT (A) erred in upholding disallowance of depreciation of ₹ 25,38,823/- made by AO on architectural and management fees paid to Mr. Anand Nair and further enhancing the disallowance to ₹ 1,77,32,315/- without appreciating that payments were genuine and rendering of services was proved and hence depreciation of ₹ 1,77,32,315/- may be allowed. 6. The Ld. CIT (A) erred in upholding disallowance of interest of ₹ 1,15,85,155/- u/s 36(1)(iii) and further enhancing to ₹ 1,87,83,274/- without appreciating that advances were made out of own funds and on commercial expediency for busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO u/s 143(2) and u/s 143(2) read with section 129 of the Act; pages 33 to 35 of the paper book which is reply to notice dated 17.06.2011; page 36, copy of notice u/s 133(6) dated 26.08.2011 issued to Sh. Anand P. Nair, Principal Officer, calling for information in assessee s case and other documents on record, to demonstrate that the AO has completed the original assessment after taking into consideration each and every detail called for during the assessment proceedings. The Ld. counsel further invited our attention to the statement of Sh. Amit Dahanukar, Chairman and Managing Director, of the assessee company recorded u/s 131 of the Act on 15.03.2013 (pages 273 to 257 of the paper book) to point out that no question with regard to the payment to Sh. Anand Nair was asked during the survey proceedings. The Ld. counsel further invited our attention to pages 56 to 59, which is the copy of reply to notice dated 19.08.2014 issued u/s 142(1) of the Act and letter issued on 23.12.2014, to explain the payments made to Sh. Nair for architectural and management consultancy services rendered by him. The Ld. counsel further submitted that Sh. Nair issued two debit notes to M/s Prag Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and MOU executed between Anand P. Nair and Sh. Amit Dhanukar in this regard were found during survey. As pointed out by the Ld. counsel, the assessee has furnished the details/explanation called for by the AO including the explanation regarding payment to Sh. Nair. The AO has issued notice to Sh. Nair under section 133(6) of the Act. As contended by the Ld. counsel the assessee included the payments made to Sh. Nair and claimed depreciation which is reflected in item No. 8 on page 34 and item No. 3 on page 35 of the paper book, which is the copy of reply to notice dated 17.06.2011. The assessee has contended in its reply to notice u/s 142(1) of the Act that actual amount of ₹ 4,78,12,113/- was paid to Sh. Nair towards architectural and management consultancy fees. 10. Further, during survey action no question was asked from the MD regarding payment to Sh. Nair. We notice that the coordinate Bench has dealt with the issue regarding payment to Sh. Nair in assessee s appeal ITA No. 5818 and 5819/Mum/2019 for the assessment years 2010-11 2011-12. We further notice that the coordinate Bench has directed the AO to allow depreciation claimed by the assessee on architect fees p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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