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TMI Blog2013 (12) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Appellant : Shri Sameer Sharma, Sr. DR For the Respondent : Shri C. S. Agarwal, Sr. Advocate ORDER Per Chandramohan Garg, Judicial Member This appeal has been preferred by the revenue against the order of the Commissioner of Income Tax(A)-XXXI, New Delhi dated 02.07.2012 in Appeal No. 1228/11-12 for AY 2004-05. 2. Ground No. 1 and 5 of the revenue are general in nature which need no adjudication. Remaining grounds of the revenue read as under:- "2. On the facts and in the circumstances of the case, the ld. CIT(A) has erred in deleting in holding that the reassessment proceeding cannot survive the test of judicial scrutiny and hence not sustainable on the ground that the reassessment proceedings are based on change of opinion. 3. On the facts and in the circumstances of the case, the ld. CIT(A) has erred in deleting the addition of Rs.2,35,33,141/- made by the Assessing Officer on account of commitment charges holding the same to be capital expenditure as against revenue expenditure claimed by the assessee. 4. On the facts and in the circumstances of the case, the ld. CIT(A) has erred in deleting the addition of Rs.1,01,92,476/- made by the Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing reply and submission of the assessee. The counsel vehemently contended that the reasons recorded are merely a review and a change of opinion on the same material which was available with the Assessing Officer at the time of original assessment. The counsel also contended that the Commissioner of Income Tax(A) rightly held the proceedings of reassessment as change of opinion because the Assessing Officer had no new tangible material which has come to the notice and knowledge of the Assessing Officer after completion of original assessment. The counsel supported the impugned order and submitted that the appeal of the Revenue is without any basis and substance either on legal grounds or on merits. 5. On careful consideration of above rival arguments and submissions of both the parties, at the outset, we find it appropriate to reproduce the reasons recorded by the Assessing Officer for initiation of reassessment proceedings under section 147 and 148 of the Act, which read as under:- "Reasons recorded It is seen from records that the assessee company has claimed commitment charges paid at Rs.2,35,33,141/- which are not admissible. Moreover, no Tax has been deducted from such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtant objection of the appellant is that no completed assessment can be reopened on the mere change of opinion. In support of this contention appellant has filed before me details filed by it before the assessing officer on the issues for which re-opening of the assessment has been made. It is stated by the appellant that during the course of original assessment proceedings on 26th September, 2006, various details were directed to be filed by the appellant which were duly filed by the appellant. The assessing officer thereafter directed the appellant to file further explanation on certain queries like depreciation, rental receipts, commitment charges, and copies of certain lease deeds. In reply to specific query details of tax deducted at source were also filed. The assessment was completed after appreciation of all the facts of the case and the details filed before the assessing officer. Even tax at source was duly deducted by the appellant on payment of commitment charges in evidence of which copies at form number 16 issued by the appellant have been filed. The appellant has filed detailed submissions on the papers and explanations were filed before the assessing officer in origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court of Delhi in their order dated 13.02.2012 have held while quashing the proceedings u/s 147/ 148 of the Income Tax Act. 1961 that "The respondent had completed the assessment u/s 143 (3) of the Income Tax Act, 1961 after scrutiny. Now it cannot be alleged that the petitioner had not furnished full and true particulars relating to the claim of depreciation at the time of original assessment All the primary facts relating to the claim had been disclosed by the petitioner and it was for the respondent to draw the appropriate inferences regarding the allowability of the claim of depreciation. It is not part of the duty of the petitioner to inform the assessing officer as to what inferences should be drawn from the primary facts disclosed. It is not alleged or stated in the reasons that the averments made in the letters written by the petitioner-assessee were false or incorrect." 6.5.4 The AO in his assessment order has quoted an observation of Hon'ble apex court in the case of Indo Aden Salt Manufacturing and trading co. (p) Ltd., vs C.I.T. 159 ITR 634 (SC) as under:- "The assessee's contention is that the Income Tax Officer could not have found out the position by further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. 6.5.5 In view of the facts and circumstances of the case, in my opinion, it is a case where assumption of jurisdiction u/s 147/148 of the I.T.Act, 1961 is not valid as it is based on change of opinion. The issues raised may be debatable but one decided on the basis of information provided by the appellant and which is not held to be wrong, same cannot be reviewed by assuming jurisdiction u/s 147/148 of the I.T.Act, 1961. Having second thoughts on the same material and omission to draw the correct legal presumption during original assessment do not warrant the initiation of a proceedings u/s 147 - ITO vs Nawab Mir Barkat Ali Khan (1974) 97 ITR 239 (SC). As such the reassessment proceedings cannot survive the test of judicial scrutiny and hence not sustainable." 9. From the above observations and findings of the Commissioner of Income Tax(A), it is apparent that the assessee made detailed submissions before the Assessing Officer replying to the queries of the Assessing Officer. In support of the submissions, the assessee enclosed copies of the detail of commitment charges paid by the assessee during the year under consideration which are placed at page no. 87-90 of the Pap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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