2018 (5) TMI 1639 - AT - Income Tax

Validity or reopening of assessment - reasons to believe that the disallowance made on account of Section 14A in respect of proportionate interest and the average value of investment Held that - AO did not give any evidence of any tangible material in his possession in the recorded reasons other than the original material on which disallowance under section 14A was based in the original assessment order under section 143(3) of the Act. Hence there is no tangible material to come to the conclusion that there is escapement of income. There is a conceptual difference between power to review and power to re-assess. The AO has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-conditions as explained above 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 in-built test to check abuse of power by the AO. Hence, after 1.4.1989, the AO has power to re-open, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. Therefore, we are of the view that an error discovered on a reconsideration of the same material (and no more) does not give AO, the power to assume jurisdiction to make reassessment. - Decided in favour of assessee

Issues Involved:
1. Legality of the reassessment order for A.Y. 2009-10.
2. Disallowance under Section 14A read with Rule 8D(2)(ii) for A.Y. 2012-13.
3. Addition of notional interest on sticky loan for A.Y. 2012-13.
4. Depreciation on plant and machinery purchased with NABARD funds for A.Y. 2012-13.
5. Addition to book profit under Section 115JB for A.Y. 2012-13.

Detailed Analysis:

Issue 1: Legality of the Reassessment Order for A.Y. 2009-10
- Grounds of Appeal: The Revenue contended that the CIT(A) erred in annulling the reassessment order despite an under-assessment of income amounting to ?3,83,41,573.
- Assessee's Argument: The reassessment was conducted without recording reasons, and the Assessing Officer (AO) reviewed his own order, which is not permitted under the Income Tax Act.
- Tribunal's Findings: The AO had completed the original assessment under Section 143(3) and later reopened it based on the same material, which constitutes a change of opinion. The Tribunal emphasized that reassessment requires new tangible material, which was absent in this case. The Tribunal upheld the CIT(A)'s decision, declaring the reassessment as invalid.
- Conclusion: The appeal by the Revenue was dismissed, and the reassessment order was annulled.

Issue 2: Disallowance under Section 14A read with Rule 8D(2)(ii) for A.Y. 2012-13
- Grounds of Appeal: The Revenue argued that the CIT(A) erred in holding that disallowance under Rule 8D(2)(ii) was not warranted.
- Assessee's Argument: The issue is covered by the Tribunal's earlier decision in the assessee’s own case, where it was held that the assessee had sufficient own funds to make the investments.
- Tribunal's Findings: The Tribunal noted that the issue was already decided in favor of the assessee in earlier years, where it was established that the assessee's own funds were sufficient for the investments. Therefore, no disallowance under Section 14A was warranted.
- Conclusion: The appeal by the Revenue was dismissed, upholding the CIT(A)'s decision.

Issue 3: Addition of Notional Interest on Sticky Loan for A.Y. 2012-13
- Grounds of Appeal: The Revenue contended that the CIT(A) erred in deleting the addition of notional interest of ?37,50,000 on sticky loans.
- Assessee's Argument: The issue is covered by the Tribunal's earlier decision in the assessee’s own case, where similar additions were deleted.
- Tribunal's Findings: The Tribunal upheld the CIT(A)'s decision, noting that the issue was already settled in favor of the assessee in previous years.
- Conclusion: The appeal by the Revenue was dismissed, and the addition of notional interest was deleted.

Issue 4: Depreciation on Plant and Machinery Purchased with NABARD Funds for A.Y. 2012-13
- Grounds of Appeal: The Revenue argued that the CIT(A) erred in allowing depreciation on plant and machinery purchased with NABARD funds.
- Assessee's Argument: The issue is covered by the Tribunal's and the Calcutta High Court's decisions in the assessee’s own case, which allowed such depreciation.
- Tribunal's Findings: The Tribunal confirmed the CIT(A)'s decision, following consistent judicial precedents in the assessee's favor.
- Conclusion: The appeal by the Revenue was dismissed, and the depreciation claim was upheld.

Issue 5: Addition to Book Profit under Section 115JB for A.Y. 2012-13
- Grounds of Appeal: The Revenue contended that the CIT(A) erred in deleting the addition of ?1,87,73,760 to book profit under Section 115JB.
- Assessee's Argument: The issue is covered by the Tribunal's earlier decision in the assessee’s own case, which excluded such additions from book profit calculations.
- Tribunal's Findings: The Tribunal upheld the CIT(A)'s decision, following the precedent that Section 14A disallowances do not impact book profit under Section 115JB.
- Conclusion: The appeal by the Revenue was dismissed, and the addition to book profit was deleted.

Summary:
The Tribunal dismissed the appeals filed by the Revenue for both assessment years, upholding the CIT(A)'s decisions. The reassessment for A.Y. 2009-10 was annulled due to a lack of new tangible material, and various disallowances and additions for A.Y. 2012-13 were also deleted based on consistent judicial precedents in the assessee's favor.

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