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TMI Blog2015 (6) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... verify once again the payment of royalty vis-à-vis sales is nothing but change of opinion and against the ratio laid down by the Hon’ble Supreme Court in the case of Kelvinator of India (2010 (1) TMI 11 - SUPREME COURT OF INDIA). We, therefore decline to interfere with the findings of the Ld. CIT(A). - Decided against revenue. Additions made on account of recalculated sales - CIT(A) deleted addition - Held that:- The undisputed fact is that there is a royalty agreement between the assessee and the Texas based company. It is also an undisputed fact that the payment of royalty is based on sales of grid material. We further find that no evidence whatsoever has been brought on record neither before the First Appellate authority nor before u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Revenue preferred against the order of the Ld. CIT(A)-21 Mumbai dt. 10.11.2010 pertaining to assessment year 2002- 03. 3. The sole grievance of the Revenue is that the Ld. CIT(A) erred in holding that the reopening of the assessment was made on the basis of change of opinion and hence reopening made by the AO was bad in law. 3.1. Briefly stated the facts of the case are that the assessee is in the business of consultancy services. The original return of income declaring total income at ₹ 65,705/- was filed on 30.10.2002. The return was processed u/s. 143(1)(a) of the Act on 11.12.2002. Thereafter, the return was taken up for scrutiny assessment. The assessment was made u/s. 143(3) of the Act on 31.1.2005 determining the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeded by computing the sales based on the payment of royalty and computed the sales at ₹ 68,04,165/-. The assessee had shown sale of ₹ 32,66,664/-. According to the AO, the assessee has suppress sales to the tune of ₹ 35,37,501/- and added the same to the income of the assessee. 4. Aggrieved by this, the assessee carried the matter before the Ld. CIT(A) and strongly objecting to the reassessment, it was strongly contended that the AO has reopened the completed assessment after 4 years therefore proviso to Sec. 147 is clearly applicable. It was explained to the Ld. CIT(A) that there was no failure on the part of the assessee for disclosing fully and truly all relevant material for assessment. After considering the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and royalty agreement inter alia with other details during the course of the original assessment proceedings. Vide letter dt. 4.12.2003 which was submitted on 11.12.2003 once again the assessee has furnished the details of royalty payment alongwith other details. Thus, it can be seen that the payment of royalty has been duly examined by the AO before making the assessment u/s. 143(3) of the Act. After 4 years of making the assessment, reopening of the assessment to verify once again the payment of royalty vis- -vis sales is nothing but change of opinion and against the ratio laid down by the Hon ble Supreme Court in the case of Kelvinator of India (supra). We, therefore decline to interfere with the findings of the Ld. CIT(A). The appeal fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see in India. It was explained that the sale proceeds of patented Grid material sold by the assessee in India were deposited in the bank accounts in India. The books of accounts were maintained as per mercantile system of accounting. It was further explained that the sales of the assessee could not be estimated since there was no nexus between the sales in India of grid material and the payment of royalty to Grid International Inc. Texas. After considering the facts and the submissions, the Ld. CIT(A) observed that there is no evidence on record to show that the assessee has made any unaccounted sales, the AO was not justified in rejecting appellant s book results and making estimation of sales. The Ld. CIT(A) accordingly deleted the additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sales in India of grid material and the payment of royalty to Grid International Inc Texas USA. The assessee is further directed to substantiate its claim by bringing cogent material evidence on record to show that sales in India of Grid material is not based on US list price. The AO is directed to examine and verify the details furnished by the assessee and decide the issue afresh after giving reasonable and sufficient opportunity of being heard to the assessee. 16. In the result, the appeal filed by the Revenue is treated as allowed for statistical purpose. C.O. No. 53/M/12 A.Y. 2007-08 17. For our detailed reason given in ITA No. 4918/M/11, this C.O. filed by the assessee is also set aside to the file of the AO and is trea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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