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TMI Blog2015 (12) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... s no finding by the AO to record anywhere his satisfaction to believe that income chargeable to tax had escaped assessment on account of failure on the part of the assessee to disclose truly and fully all material facts necessary for assessment. Notice u/s.148 of the Act was issued beyond the period of 4 yeqrs from the end of the relevant assessment year is wholly unsustainable as held by the Jurisdictional High Court in the case of CIT v. Schwing Stetter India P. Ltd. (2015 (6) TMI 497 - MADRAS HIGH COURT ). The same view was fortified by the judgment of the Supreme Court in the case of CIT v. Kelvinator of India Ltd. (2010 (1) TMI 11 - SUPREME COURT OF INDIA ). Being so, when the AO framed the original assessment u/s.143(3) of the Act aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. On earlier occasion, before the Tribunal, the assessee has moved petition for admission of additional ground with regard to the validity of reopening u/s.148 beyond 4 years. The Tribunal vide its order in ITA No.2837/Mds/2007 dated 17.4.2009 set aside the orders of the lower authorities. In view of the above directions of this Tribunal, the Assessing Officer completed the assessment u/s.143(3) r.w.sec.254 of the Act on 24.12.2010 assessing the income t ₹ 13,55,82,595/- by making (i) disallowance contribution to welfare funds, (ii) disallowance of royalty u/s.40(a)(i) and (iii) re-working the deduction u/s.80HHC of the Act. Against this order, the assessee went in appeal before the Commissioner of Income-tax(Appeals), who confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible deduction while computing the business income of the assessee. Therefore, he submitted that there is no reason to reopen the assessment. The other two issues in dispute, were also considered by the Assessing Officer while completed the assessment u/s.143(3) originally. 6. On the other hand, the ld. DR submitted that where there is an assessable income for any of the assessment years and the same was not brought to tax, it constitutes a reason for reopening the return u/s.147 of the Act. The ld. DR further submitted that what constitutes the escapement of income has also been provided in the provisions of sec.147 of the Act. According to him, as per these provisions, the escapement of income means, i) Understatement of income or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment u/s.147 of the Act. Therefore, the ld. DR submitted that after recording these reasons, the Assessing Officer reopened the assessment u/s.147 of the Act, by issuing notice u/s.148 of the Act. 6.2 Thus, according to the ld. DR, the issue of non-deduction of TDS on royalty payments and its disallowability u/s.40(a)(ia) of the Act and also the issue of exclusion of 90% of the other non-business income from the eligible profits for the purpose of deduction u/s.80HHC were never considered by the Assessing Officer at the time of original assessment u/s.143(3). Hence, he submitted that the question of change of opinion' doesn't apply to the facts of the present situation. 6.3 Further, the ld. DR submitted that when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittedly, notice u/s.148 was issued beyond 4 years from the end of the relevant assessment year for the purpose of considering disallowance of royalty payment and recomputation u/s.80HHC. The AO having applied his mind while framing the assessment u/s.143(3) of the Act considered the issues mentioned above. 8. Reopening is permitted only if the AO has the satisfaction that the income chargeable to tax has escaped assessment by reason of the failure on the part of the assessee to make a return u/s.139 or in response to a notice issued under sec.142(1) or sec.148 or to disclose fully and truly all material facts necessary for the purpose of assessment, as held by the Madras High Court in the case of CIT v. Eco Media (P) Ltd. (81 CCH 85). Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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