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TMI Blog2016 (1) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal noted that the CBDT in the circular dated 29.8.2005 clarified that FBT is an allowable deduction for computation of book profit under section 115JB of the Act. That being the position, the Tribunal was correct in holding that the reopening was invalid. - Decided in favour of assessee - Tax Appeal No. 814, 815 of 2015 - - - Dated:- 22-12-2015 - Akil Kureshi And Mohinder Pal, JJ. For the Appellant : Mr K M Parikh, Adv For the Respondent : Mr Manish J Shah, Adv ORDER ( Per : Honourable Mr. Justice Akil Kureshi ) 1. These appeals arise in similar background. We may therefore, record facts from Tax Appeal No. 814/2015. the Revenue has challenged the judgement of Income Tax Appellate Tribunal raising the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer was required to make disallowance as per the provisions of rule 8D which amounts to ₹ 761.34 lakh. During the year the assessee had paid the interest of ₹ 8167.94 lakh. Total investment during the year was ₹ 12984.55 lakh as per the schedule-6 of B/S. Thus, in view of application of Rule 8D and the decision of the ITAT spl Bench, Mumbai in case of M/s. DAGA Capital Management Pvt. Ltd v/s. ITO (117 ITD 169) that provisions of 14A(2) and (3) are clarificatory in nature and would apply retrospectively and in result rule 8D would also apply accordingly. An amount of ₹ 761.34 was actually required to be allowed u/s.14A as expenses pertaining to earn exempt income. Further it was revealed that while compu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment on the basis of tangible material. Further, when all material facts necessary for determination of the income has been disclosed by the Assessee and the Assessing Officer has taken a particular view on those disclosed facts while passing the assessment order in regular proceedings, then without anything more, it would not be open for the Assessing Officer to reopen the assessment proceedings as reopening in such a case would be reopening on account of change of opinion. In the present case, the reasons for reopening indicate that the reopening has been initiated on two grounds namely disallowance under section 14A and on account of non addition of FBT to determine the book profit for the purpose of computing tax u/s. 115JB. With respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reopening is not permissible as per law. We thus set aside the reopening of the assessment order dated 29.11.2010 and also all consequential orders. Thus the grounds of assessee is allowed. Since the issue of reopening has been decided in favour of the assessee, the other two grounds of the assessee have become academic and therefore not adjudicated. 4. From the above it can be seen that the Assessing Officer had pressed in service two elements for issuing notice for reopening. First was with respect to the disallowance of expenditure under section 14A of the Act. Such issue was examined by the Assessing Officer in the original order of assessment and made suitable disallowances. The Tribunal therefore, correctly held that any reconsi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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