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TMI Blog2024 (2) TMI 1520X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2009, the petitioner filed written submissions wherein it had mentioned various write off against the share premium account in accordance with the amalgamation order passed by this Court on 9 February 2007. The petitioner also gave its submissions on business loss & bad debts in respect of the Inventories, Sundry Debtors, Loans & Advances amounting to Rs. 9,05,12,555/- Rs. 41,00,00,000/- and Rs. 12,99,12,471/- respectively. The petitioner in paragraph 20 of the said letter also gave its submission with respect to a claim of Rs. 6,84,12,438/- on account of write off of Set Top Boxes. 4. On 30 December 2009, an assessment order under Section 143 (3) of the Act was passed. In the said assessment order, an amount of Rs. 1,00,41,557/- was disallowed on account of bad debts. The income assessed was Nil after setting off unabsorbed business losses and depreciation. 5. On 30 March 2012, the impugned notice under Section 148 of the Act was issued to the petitioner. The petitioner was served with the reasons for reopening assessment vide letter dated 22 May 2012 and the reasons read as under : - "On perusal of assessment records relating to A.Y.2007-08, following discrepancy has been n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Securities Premium Account as per Scheme of amalgamation. Audit scrutiny revealed that while computing income as per normal provisions of the Act, these amounts were again claimed as deductible under section 36 (1) (Vii) and 37 (1) of the Act as party's accounts are written off. Thus in the present case the assessee company had not charged Bad Debts and inventories off to Profit and Loss Account. Moreover the allowance of these amounts which were in fact already adjusted against Share Premium Account against the income computed under normal provisions of the Act was also violation of scheme of arrangement approved by Honourable High Court. Accordingly the same were required to be disallowed. The omission to disallow the same had resulted in under assessment of Rs. 69,88,37,464/- involving revenue impact of Rs. 23,52, 28,690/-. On account of facts and circumstances as above, I have reasons to believe that taxable income of Rs. 69,88,37,464/- has escaped assessment for A.Y. 2007-08 and I am satisfied that it is fit case for re-opening u/s 147 of the I.T. Act. If administratively approved, notice u/s 148 may be issued to the assessee." 6. On 3 November 2012, the petitioner fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 148 and, therefore, the proceedings are ab initio void. He further submitted that there is no rebuttal to the objection raised by the petitioner in the order rejecting the objections except stating that in the assessment order, the discussion is only with respect to bad debts of related parties and in the absence of any discussion on other issues, income has escaped assessment. Learned counsel further submits that although the reassessment is within 4 years but the issue was examined in the course of the assessment proceedings and therefore the impugned proceedings are bad-in-law. In support of his various submissions, he has relied upon the decisions in the case of Indian & Eastern Newspaper Society Vs. Commissioner of Income-tax (1979) 2 Taxman 197 (SC), Aroni Commercials Ltd. Vs. Deputy Commissioner of Income-tax-2(1) (2014) 44 taxmann.com 304 (Bombay), Ankita A. Choksey Vs. Income Tax Officer-19 (1) (1) & Ors. Writ Petition No.3344 of 2018 decided on 10 January 2019. and Mrs. Parveen P. Bharucha Vs. Deputy Commissioner of Income-tax, Circle 2, Pune (2012) 28 taxmann.com 274 (Bom.) and prayed for quashing the impugned proceedings. 10. Mr. Suresh Kumar, learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems were not debited to the profit and loss account but were reduced from the Share Premium Account. The assessing officer in the assessment order records that the petitioner appeared on various dates and filed the details called for. In the assessment order disallowance on account of bad debts was made of Rs.1,00,41,557/-. However, since the assessment proceedings and assessment order are not adversarial proceedings, the issues on which the queries were raised and replied vide letter dated 7 December 2009 and which were accepted does not figure in the assessment order. 14. It is not necessary that each and every item of query should appear itself in the assessment order. It is only those items or issues where there is a difference of opinion between the assessee and the assessing officer that discussion is required to appear in the assessment order. Therefore, merely because the assessment order does not discuss the issues on which the queries were raised and no addition/disallowance was made, it cannot be said that there is no application of mind on the issue. 15. The fact that the query was raised, reply filed and accepted by not making any addition/disallowance in the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these items are not charged to the profit and loss account then how can it be said that there is a double deduction. On a query being raised by this Court, the respondent has not justified the issue of the petitioner claiming double deduction of the same amount for which the reopening was sought. Therefore, even on this count the impugned proceedings are required to be quashed and set aside. 19. The petitioner is justified in relying upon the decision of this Court in the case of Aroni Commercials Limited (Supra) where the Co-ordinate Bench has held that even in case of reopening within 4 years from end of the assessment year if the issue was examined in the course of the assessment proceedings then no reopening of assessment can be done since the same would amount to change of opinion. In our view, the ratio of this decision supports the case of the petitioner. 20. The petitioner is also justified in relying upon the decision of the Co-ordinate Bench in the case of Ankita Choksey (Supra) wherein the Court had observed that when an assessee points out in its objection that the officer has proceeded on wrong facts and the assessing officer in its order disposing of the objection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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