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TMI Blog2012 (10) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... n Tax Case (Appeal) Nos. 76 and 77 of 2008 dated 27-04-2011., wherein the Hon'ble High Court has decided the issue against the assessee holding that where refund is granted without any delay, the question of granting interest on interest will not arise.. Respectfully following the decision of the jurisdictional High Court, we dismiss the ground raised by the assessee with regard to the disallowance of interest under section 244A of the Income Tax Act, 1961. 3. Grounds 3 and 3.1 raised by the assessee relate to the levy of interest under section 234D of the Act. The Hon'ble jurisdictional High Court of Madras has decided the issue in the case of CIT v. Indian Overseas Bank Ltd in TC(A) No. 534 of 2008 dated 30-09-2011 against the assessee wherein the Hon'ble High Court has held that if the regular assessment is made after 01-06-2003, interest u/s 234D becomes applicable. Respectfully following the decision of the Hon'ble High Court, we dismiss the grounds raised by the assessee in respect of levy of interest under section 234D of the Act. ITA No. 163/Mds/2012: 4. The only ground raised by the Revenue relates to the deletion of the disallowance u/s 40(a)(i) of the Income Tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following these decisions, the disallowance made by the AO in this regard is deleted. This ground of appeal is allowed." 7. On being aggrieved, the Revenue has filed the present appeal. The learned DR has relied upon the decision of the Authority For Advanced Ruling in the case of SKF Boilers and Driers Pvt. Ltd., In re, reported in 343 ITR 385. 8. We have heard both the sides, perused the records and gone through the orders of the authorities below. In view of the decision of the Hon'ble Supreme Court in the case of G.E. Technology Centre P) Ltd. (327 ITR 456) as also the decision of the Tribunal in the assessee's own case for the asst. year 2005-06 in ITA No. 250/Mds/2010 dated 16-12-2010, we find no infirmity in the order passed by the CIT(A). Accordingly we confirm the order of the learned CIT(A) and dismiss the ground raised in this appeal by the Revenue. ITA No. 05/Mds/2012: 9. The first ground is general in nature and needs no adjudication. Ground Nos. 2 and 2.1 relate to the confirmation made by the CIT(A) in respect of the reopening of the assessment. 10. Brief facts are that the assessee filed its return of income for the assessment year 2003-04 on 28-11-2003 declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Based on the above facts, it is clear that assessee has not disclosed all the material facts fully and truly before the tax authorities for the purpose of assessment for the AY 2003-04. Hence, I have the reason to believe that: the income escaped the assessment for the current year within the meaning of provisions of section 147 of the Income tax Act." (Emphasis supplied by us) 11. In response to the notice issued by the AO the assessee had filed its letter on 16-03-2010 requesting that the return filed originally may be treated as the return filed in response to the notice u/s 148 of the Act. Subsequently, a notice u/s 143(2) was issued on 9.6.2010 and on behalf of the assessee the assessee's representative appeared before the AO. During the course of the reassessment proceedings, the assessee has submitted a detailed letter dated 19-08-2010 stating that the assessment has been reopened after the expiry of four years from the end of the relevant assessment year. Since the assessment was reopened without receipt of fresh evidence or to prove the failure on the part of the assessee to produce all the material facts fully and truly, the reopening of the assessment is bad in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Tribunal in the assessee's own case in ITA No.13/Mds/2010 for the assessment year 2001-02 dated 24-10-2010, the decision of the Hon'ble Supreme Court in the case of CIT v. Kelvinator of India Ltd. (320 ITR 561) (SC) and the decision of the jurisdictional High Court in the case of ACIT v. M/s. Sri Mookambigai Spinning Mills Ltd. in TC(A) No. 2611 of 2006 dated 27-11-2006 and submitted that in view of the above case laws relied on by him, the reopening of the assessment after four years is bad in law. 14. On the other hand, the learned DR strongly supported that the AO has rightly reopened the assessment by issuing a notice under sec. 148 of the Act and submitted that the assessee has not disclosed fully and truly all the material facts relevant for the completion of the assessment. He has specifically referred to the Annexure to the Annual Report column No.5 where the total profits of the business of the assessee has been shown at Rs. 10,06,18,961/-. As per the Profit & Loss Account as on 31-03-2003 the net profit for the year was Rs. 1,756.29 lakhs and the net profit was Rs. 1,170.29 lakhs. He further submitted that how the assessee could give a figure of Rs. 10,06,18,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t work like painting carried out by us for other companies. The charges are fixed after taking into account cost of material and labour and our margin." We find that during the course of assessment proceedings earlier the assessee has submitted that the sub-contract charges cannot be considered as forming part of the total turnover. Subsequently, the assessee has submitted that "the charges are fixed after taking into account cost of material and labour and our margin." Comparing these two statements, one which is made earlier and subsequently it is not clear what the assessee wanted to submit before the AO and even during the course of hearing before us the assessee has not explained as to what is the significance of the submissions in the letter dated 23-01-2006. However, the AO while passing the assessment order u/s 143(3) has observed that sub-contract charges and weighment charges are to be excluded from the total turnover. 16. Insofar as sales commission paid in foreign currency is concerned, there is no discussion in the assessment order passed by the AO u/s 143(3) of the Act. From the assessment order u/s 143(3) it can be seen that the assessee has given the figures with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee before the AO is not a true and full disclosure necessary to complete the assessment. It is the bounden duty of the assessee to submit all the details necessary to complete the assessment without any ambiguity. Therefore, the reopening of the assessment is valid even after four years as per the proviso to section 147 of the Act. 18. Insofar as the case law relied on by the learned counsel for the assessee is concerned in the case of CIT v. Kelvinator of India Ltd. (supra), the Hon'ble Supreme Court has considered the issue with regard to change of opinion. In the present case, there is no change of opinion because the assessee has not submitted all the details to complete the assessment and therefore it cannot be said that there was a change of opinion. Thus this decision has no application to the facts of the present case. 19. In the decision of the jurisdictional High Court in the case of M/s. Sri Mookambigai Spinning Mills Ltd. (supra) the assessee has disclosed fully and truly all material facts necessary for the assessment. Therefore the Hon'ble jurisdictional High Court has held that as per the proviso to sec. 147 of the Act, the AO does not have the power to reopen the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o application to the facts of the present case. In view of the above, we do not find any infirmity in the order passed by the CIT(A) upholding the reopening of the assessment order passed by the AO. In the circumstances, this ground raised in the assessee's appeal is dismissed. 21. Ground No.3 raised by the assessee in this appeal relates to the exclusion of the sub-contract charges while computing the deduction under section 80HHC of the Act. The AO has excluded the sub-contract charges for the purpose of computation under section 80HHC based on the judgment of the Hon'ble Supreme Court in the case of CIT v. K. Ravindranathan Nair (295 ITR 228). Before the CIT(A) the assessee submitted that the sub-contract charges received by the assessee are an income akin to rent etc. enumerated in clause (baa) in the Explanation to Section 80HHC and the same was not subject matter before the Apex Court in the case of K. Ravindranathan Nair (supra). It was contended that the same cannot be held as an authority to disallow the claim of deduction under section 80HHC of the Act. The learned CIT(A) confirmed the order of the AO on the ground that the AO by following the decision of the Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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