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TMI Blog2016 (3) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of framing original assessment. We, therefore, of the considered view that such reopening based on the material which was considered by the AO at the time of passing the original assessment is bad in law and we, therefore, find no infirmity or see any reason to interfere in the order of the CIT(A) which is passed after following ratio laid down in the case of CIT vs. Kelvinator of India Limited (2010 (1) TMI 11 - SUPREME COURT OF INDIA ) - Decided against revenue - I.T.A. No 1790/Mum/2013, C.O. No 104/Mum/2014 - - - Dated:- 22-1-2016 - SHRI SAKTIJIT DEY, JM AND SHRI RAJESH KUMAR, AM For The Appellant by : Shri J. Saravanan For The Respondent : Shri Nishit Gandhi ORDER PER RAJESH KUMAR, A. M: This appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t u/s 115WE(3) of the Act vide order dated 01.12.2008. Later on the case was reopened and notices u/s 115WH of the IT Act was issued on 30.03.2011. The reasons recorded for reassessment are as under. In this case, the assessment was completed u/s 115WE(3) on 01.12.2008, assessing the total value of Fringe Benefits at ₹ 14,10,695/- On perusal of the records, it is observed that the assessee has claimed deduction of ₹ 2,66,000/- being contributions towards superannuation fund of employees. However, the FBT has not been paid on the said amount by the assessee. During assessment proceedings also, the Assessing Officer did not charge FBT on the said amount. In this regard, it is pertinent to mention here that as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the jurisdictional High Court in the case of Purity Techtextile Pvt. Ltd. Vs. ACIT reported in 325 ITR 459 has held that the reopening of the assessment based on the audit objection cannot be held to be justified. Secondly, I find that the fringe benefit tax on the said contribution towards superannuation fund has been paid by the appellant company in the A.Y. 2007-08 on actual payment and hence there are no encashment of fringe benefits which have escaped assessment. In addition to this, I also take note of the observation made by the jurisdictional High Court in Para-7 of its order of Writ Petition of 430/2012 referred as above which is extracted herein below: However as submissions were made on other issues also we are exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessment on the same facts without anything more would be a review and not permitted under the garb of reassessment. This would be a mere change of opinion in the absence of any tangible material and is not sufficient to assume jurisdiction to issue the impugned notice. In fact, our court in the matter of Idea Cellular Ltd. v. Deputy Commissioner of Income tax reported in 301 ITR 407 has held that once all the material with regard to particular issue is before the assessing Officer and he chooses not to deal with the same, it cannot be said that he had not applied his mind to al/ the material before him. Further, as observed by the full Bench of Delhi High Court in the matter of CIT v. Kelvinator of India Ltd. reported in 256 ITR 1, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o final conclusion that contribution towards superannuation fund was not part of the value of fringe benefit and therefore on the same material the AO could not change his opinion to assume jurisdiction to reopen the assessment. Thus, it is clear that no new information/material had come into possession of the AO and therefore it was a case of change of opinion which was not permissible under the Act. It was also submitted before us that the assessee had duly disclosed all facts qua Contribution to Superannuation Fund in the Financial Statements Schedule 9 - Notes to the Accounts 5 Managerial Remuneration, Tax Audit Report Appendix IV. Specific query was also raised by the AO vide question no 10 of the FBT Annexure to furnish the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No Provisions Reply in relation to SAF 11 Section 43B Amounts as on March 31,2006 - ₹ 2,66,000/- Amounts paid before filing return ₹ 2,65,684/- Disallowance in Computation of Total Income ₹ 316/- 30 FBT During the year under consideration, the company made a provision in the books towards the contribution to be made to the SAF for ₹ 2,66,000/-. The said contribution/payment was made to the SAF during the following financial year i.e. 2006-07 and thence, the FBT on the same was paid in the financial year 2006-07. The details of contribution to be made to the SAF ..... X X X X Extracts X X X X X X X X Extracts X X X X
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