9911796707
TMI Blog2024 (7) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... aken as many as six grounds of appeal, however, the sole issue raised by the assessee in this appeal is relating to the validity of the reopening of the assessment. 3. The brief facts of the case are that the assessee is a cooperative bank and derives income from banking business. The Assessing Officer noted that the assessee had not filed its return of income for the assessment year 2009-10 despite having taxable income. He, therefore issued a notice u/s 142(1) of the Act on 21.07.2010. In compliance of the said notice, the assessee filed its return on 09.08.2010 showing a loss of Rs. 1,79,29,709/-. Thereafter, Assistant Commissioner of Income Tax, Circle-2, Muzaffarpur (hereinafter referred to as the 'ACIT') noted that the assessee despi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited to profit & loss account in subsequent years. In support of this, the assessee referred to the audit report for assessment year 2010- 11. The Assessing Officer, however, noted that the said explanation of the assessee was not satisfactory because of provision for bad and doubtful debts of Rs. 1,83,22,123/- had been debited in the profit & loss account during the year under consideration i.e. A.Y 2009-10 and due to that reason only, the income of the assessee had converted into loss. The Assessing Officer further observed that 10% of the aggregate average advances made by rural branches of the bank was allowable, however, the assessee had not furnished the addresses of the branches, which were situated in rural areas. Further, there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this respect has relied upon the decision of Hon'ble Supreme Court in the case of 'CIT vs. Kelvinator India Ltd.' reported in (2010) 320 ITR 561 (SC) and further of the Third Member decision of the Mumbai Bench of the Tribunal in the case of 'Telco Dadajee Dhackjee Ltd. vs. DCIT' in ITA No.4613/Mum/2005 order dated 29.06.2012 and further of the Coordinate Mumbai Bench of the Tribunal in the case of 'Delta Airlines, INC vs. ITO' in ITA No.3476/Mum/2008 order dated 30.11.2012. 6. The ld. DR, on the other hand, has relied upon the findings of the lower authorities. 7. We have considered the rival submissions and gone through the record. In the case in hand, the original return was filed by the assessee with ITO, Ward-1, Muzaffarpur, whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or any contention which the Assessing Officer was supposed to look into, in our view, does not fall in the definition and scope of objection. The second contention raised by the ld. Counsel is that the amount of deduction claimed of, mentioned by the Assessing Officer in the reasons recorded was Rs. 1,48,86,823/-, whereas, the amount debited during the year was Rs. 1,83,22,123/-. He in this respect has submitted that there is no application of mind by the Assessing Officer as the figure of the amount was taken of another year. This contention of the ld. AR, in our view, is also not tenable. It is to be mentioned here that earlier the reopening of the assessment u/s 147 of the Act was initiated for two assessment years i.e. A.Y 2009-10 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver scrutinized u/s 143(3) of the Act, therefore, there wasn't any earlier opinion formed by the Assessing Officer, which could be said to have been changed. So far as the reliance of the ld. Counsel on the Coordinate Mumbai Bench of the Tribunal in the Third Member decision in the case of 'Telco Dadajee Dhackjee Ltd. vs. DCIT' (supra) is concerned, in the said case, reopening of assessment was done after four years. The Third Member in the said case has observed that where the return of income has been processed u/s 143(1) of the Act, there is no question of change of opinion. Therefore, the contention of the ld. Counsel that it is a case of change of opinion, is not tenable even in view of the Third Member decision. However, in the said T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C vs. ITO' (supra) is concerned, we find that in the said case, the decision has been given only on the basis of the Third Member decision as discussed above, that there will be a tangible material to form the belief of escapement of income, which condition is duly fulfilled in the case in hand. Moreover, from the facts of the case, we find that it is not a case of change of opinion at all as no second opinion could have been formed by any of the authority in view of the express statutory provisions of section 36(1)(viia) of the Act that deduction on account of provision for bad and doubtful debts cannot exceed more than 7.5% of the total income. Neither any second opinion nor two views were possible in this case, only one opinion/one view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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