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TMI Blog2012 (11) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, as reproduced by the Tribunal in its order dated 6-3-2012 (supra), assessee had contended that the reopening of the assessment u/s 148 was invalid and bad in law on the ground that the notice u/s 148 was issued without providing reasons recorded for issuance of such notice in the course of re-assessment proceedings till completion of the assessment order. Secondly, it was canvassed that relevant material forming the basis for reopening the assessment was already available on record and that the re-assessment proceedings were thus initiated on the basis of a mere change of opinion. The Tribunal dealt with both the aspects, as is evident from the following discussion in para 11 of the order dated 6-3- 2012:- 11. So far as the contention of the ld. A.R. that notice u/s. 148 along with reasons should have been issued within 6 years from the A.Y. 2002-03 i.e. before 31st March 2009 is concerned, we fully agree with it that the A.O should have supplied the reasons recorded at the earliest possible opportunity to enable the assessee to file objection, if any, thereto. In turn, A.O is also required to meet out those objections to justify his further proceeding for reassessment. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acrylic Manufacturing Co. Vs. CIT (Supra) also followed by the Delhi Bench of the Tribunal in the case of Shri Balwantrai Wadhwa Vs. ITO (Supra) relied upon by the Ld. A.R. having distinguishable facts is not helpful to the assessee. In that case, exception carved out by proviso to Sec. 147 came into play whereas in the present case, the matter falls in main provision of Sec. 147 of the Act. In that case before the Hon ble Delhi High Court, the original assessment was completed u/s. 143(3) whereas in the present case before us, the return was processed u/s. 143(1)(a) of the Act. As per this proviso to Sec. 147, where an assessment under Sub-section (3) of Sec. 143 or Sec. 147 has been made for the relevant A.Y, no action shall be taken under this Section after the expiry of 4 years from end of the relevant A.Y, unless an income chargeable to tax has escaped assessment for such A.Y. by reason or the failure on the part of the assessee to make return u/s. 139 or in response to a notice issued under Subsection (1) of Sec. 142 or 148 or to disclose fully and truly all material facts necessary for his assessment, for that A.Y. The proceedings initiated for re-opening also cannot be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inferred from the deeming provisions. Therefore, there being no assessment under section 143(1)(a), the question of change of opinion, as contended, does not arise.(Para 13) The Hon ble jurisdictional Bombay High Court in the case of Dr. Amin s Pathology Laboratory Vs. JCIT, 252 ITR 683 has also been pleased to hold as under : In the instant case, returns had been accepted under section 143(1)(a). Thereafter, the Assessing officer found that unpaid expenses which ought to have been disallowed were not disallowed. This aspect was overlooked when the returns were accepted under section 143(1)(a). Therefore, there was no question of change of opinion as alleged. The proviso to section 147 applies only to cases where reopening is sought of assessments under section 143(3). In the instant case, there was no assessment of the assessee under section 143(3) in respect of the relevant assessment years. Hence, the proviso to section 147 had no application. It was true that after the returns came to be accepted in respect of the assessment year 1995-96, four years had elapsed. However, there was no assessment under section 143(3). Therefore, the proviso to section 147 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 143(3). The Hon ble Bench has not considered the fact that in the case of Balwant Rai Wadhwa (supra) the original assessment was completed u/s 143(1). In that case also the Hon ble Delhi Bench squashed the reassessment order as the reasons for issuance of notice u/ 148 were not provided within the period of six years. The Hon ble Delhi Bench drew support from the decision of Delhi High Court in the case Haryana Acrylic Manufacturing Ltd. (supra). The Hon ble Bench also did not consider the discussion and finding given by the Delhi High court in the case of Haryana Acrylic Manufacturing Ltd., declaring the mandatory requirement of supplying the reasons at the earliest opportunity and before the end of six years (refer para 21 to 23 of the said order). This distinguishable fact pointed out by the Hon ble Bench has the relevance for the purpose of considering the period/years within which the notice u/s 148 can be issued within six years from the end of the relevant Assessment. However an exception is carved out in a case where the assessment is completed u/s 143(3) or u/s 147, in that case no action shall be taken after the expiry of four years from the end of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for making an addition of the rebate allowed u/s 41(1) of the Act. It is a common feature of the scrutiny proceedings in which the Assessing Officer does issue such notices proposing to make certain disallowance or additions etc. Therefore the Hon ble bench has erred in holding that the Assessing Officer has communicated the reasons vide his show cause notice dated 8-12-2009 and further erred in holding that applicant s raised objections on the reasons communicated. v. Non-consideration of the decisions of Supreme Court and Delhi High Court referred to above does constitute mistake of law/mistake apparent from record. vi. Attention is drawn to the decision of Bombay High Court in the case of CIT Vs. Videsh Sanchar Ltd. 340 ITR 66 wherein the court held that reassessment order cannot be upheld as the reasons recorded were not furnished till the completion of assessment. This decision is rendered on 20-7-2011 and reported in ITR issue dated 2nd Januar7y 2012 (see page no. 9 to 10). The applicant can take support of this decision in this Miscellaneous application to demonstrate that the decision of this Hon ble Bench is incorrect and constitutes mistake of law apparen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope and purview of section 254(2) of the Act which only empowers the Tribunal to amend its order so as to correct any mistake apparent from record. Clearly the position now sought to be made out by the assessee amounts to review of its own order by the Tribunal which is impermissible in terms of section 254(2) of the Act. The Tribunal while adjudicating and affirming the action of the CIT(A) was conscious of the fact that the show cause notice dated 8-12-2009 was not in the format as would be in a case whereby the reasons recorded are to be communicated. So however, it came to the conclusion that we principally agree with the finding of the ld. CIT(A) that the reasons were communicated to the assessee and opportunity was also afforded to the assessee to raise objection or to show cause as to why the income to the extent of ₹ 548.80 crores escaped the assessment should not be taxed. Moreover in the said show cause notice it has also been mentioned that the income has escaped assessment within the meaning of section 147 and the notice u/s 148 has been issued as has been observed by the Tribunal. 8. Apart therefrom, we may notice here that in the assessment order, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was found that facts had been disclosed and Assessing Officer discovered subsequently that income had been assessed under wrong head Notice after four years under section 148 Not valid section 147, 148 Gujarat Fluor chemicals Ltd. Vs. Dy. CIT (Guj) 282. In light of above it is requested that notice initiating proceeding under section 147 be dropped. 9. Quite clearly, in the proceedings before the Assessing Officer, assessee objected to the proceedings initiated u/s 147 of the Act and the Assessing Officer has dealt with the objections raised by the assessee against initiation of proceedings u/s 147 of the Act. Coupled with the fact that the CIT(A) had recorded a finding that the actual reasons recorded though in a different format, were reproduced in the notice dated 8-12-2009, the same in our view substantially complied with the requirement that the reasons for initiation of proceedings u/s 147 were communicated to the assessee and the assessee also availed an opportunity to raise objection thereto, which were dealt with by the Assessing Officer in the assessment order. Therefore, for all the above reasons, we find that the mistake now sought to be pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the return of A.Y. 2001-02. Hence no new tangible material is held or obtained by Assessing Officer. The Hon ble bench also did not consider the decision of Supreme Court in the case of Kalvintor of India Ltd. 320 ITR 561 (Note enclosed at page no. 30). 11. In our view, the petitioner does not have justifiable ground which would require interference by us in terms of the limited scope available u/s 254(2) of the Act. The Tribunal has adjudicated the issue based on the material before it and the decision now sought to be cited before us, were not before the Tribunal originally. In any case, if the present plea is entertained, it would only amount to review of its own order by the Tribunal which is beyond the scope and purview of section 254(2) of the Act. Therefore, on this aspect also, assessee fails. 12. The third mistake sought to be pointed out by the learned counsel for the petitioner is that the Tribunal wrongly held that the government resolution dated 21-5-1999 ordering the remission or waiver is a policy decision applicable not only to the assessee but to other similar parties also. In this connection, the learned counsel submitted that the said Government Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 23.5.2001 issued by MSEB to the assessee which specifies the benefit of waiver of arrears in particular amount to the assessee and thus the A.O has rightly held that the income accrued to the assessee was on 23/5/2001. We thus do not find infirmity in the first appellate order in this regard which is comprehensive and reasoned one. We concur with the observation of the CIT(A) that as per the Black s Law Dictionary; the expression remission has been defined to mean a release or extinguishment of a debt . Therefore, the act of remission is attributed to the creditor and it is a positive act or conduct on the part of the creditor by which the liability of debtor is extinguished. 14. In the present case, there is a specific act on the part of the creditor of the assessee i.e. MSEB in May 2001, which has resulted in extinguishment of the liability of the assessee on this account to the extent of arrears waived by MSEB and there is remission of liability. We thus fully agree with the finding of ld CIT(A) that benefit was obtained by the assessee by way of remission of power charges pursuant to the letter of creditor, MSEB dated 23rd May 2001, i.e. relevant for the A.Y. 2002- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicated. The learned counsel referred to the compilation of submission furnished at the time of regular hearing and substantiated that such an alternative submission was indeed raised during the course of hearing and the same has not been adjudicated. 16. On this aspect the learned DR had not seriously contested, inasmuch as, it is evident from record that such submission was raised in the course of hearing and has been inadvertently not adjudicated by the Tribunal. The said omission to deal with a plea raised by the assessee, in our view, constitutes a mistake apparent from the record within the meaning of sec. 254(2) of the Act. In this view of the matter, we therefore, deem it fit and proper to direct the Registry to re-post the assessee s appeal before a regular bench for the limited purpose of considering and deciding the alternative plea raised in Ground no. 4 which was left unadjudicated in the earlier order dated 6-3-2012 (supra). The Registry is directed to post the matter before the regular bench on 10th January 2013 and inform the Parties accordingly Thus, on this aspect, assessee succeeds for statistical purposes. 17. In the result, the M.A. of the assessee is p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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