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TMI Blog2016 (6) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... lear opinion given by the Assessing Officer before the Auditor that there was no evidence as the said provision was an unascertained liability as per letter dated 24.09.2003. Thus, the proceedings under Section 147 of the Income Tax Act, 1961 are not valid as the notice under Section 148 of the Act was issued on account of change of opinion. Therefore, CIT(A) was incorrect while dismissing the appeal of the assessee. - Decided in favour of assessee - I.T.A. No. 1870/DEL/2010, I.T.A .No. 2147/DEL/2010 - - - Dated:- 3-6-2016 - Shri G. D. Agrawal, Vice President And Smt Suchitra Kamble, Judicial Member For the Appellant : Sh. Vikas Srivastava, Adv For the Respondent : Sh. P. Dam Kanunjna, Sr. DR ORDER Per Suchitra Kamble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. 5. Without prejudice, based on the facts and circumstances of the case and in law, the CIT(A) has erred in upholding the disallowance of 25 percent of the provision for obsolescence amounting to ₹ 1,213,037/- created by the appellant during the previous year relevant to the subject assessment year, under the normal provisions of the Act. 6. Without prejudice, based on the facts and circumstances of the case and in law, the CIT(A) has erred in upholding the disallowance of marketing expenditure of ₹ 2,454,798/- incurred on account of mobile phones handset issued to AMCs, dealers and employees during the previous year relevant to the subject assessment year as capital expenditure in the hands of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approval of JCIT. The Assessee filed reply dated 25/10/2004 asking Assessing Officer to consider revised income dated 30/11/2000. Notice u/s 143(2) of the Act dated 10/10/2005 was issued by A.O initiating assessment. The Assessee filed reply dated 20/10/2005 to Section 143(2) notice, requesting reasons for re-opening before proceeding further with the assessment. 6. On 17/11/2005 reasons for re-opening, in respect of first notice under Section 148 was provided to assessee are as under: ..After examination of the assessment records for the Assessment Year 1999-2000 it has been revealed that during the year the assessee has mad various provisions in the return of income listed as Under:- Gratuity-Rs. 1407400/- Doubtful Debts- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or reasons recorded before proceeding with assessment. 10. On 30/8/2006 copy of reasons (dated 2/2/2006) in respect of second 148 notice provided by A.O. to the assessee. The same are reproduced hereunder: .After examination of the assessment records for the Assessment year 1999-2000, it has been revealed that during the year the assessee made various provisions in the return of income listed as under: Gratuity- ₹ 1407400/- Doubtful Debts- ₹ 43554990/- Warranty-Rs. 17745202/- Obsolescence- ₹ 4852150/- The provisions claimed are in the nature of unascertained liabilities, however, while computation of income u/s 115JA the above unascertained liabilities have not been added to the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the matter is settled. The said stand was shifted and a contrary view was taken by the Assessing Officer while passing the assessment order in question. Thus it was clear change of opinion. The letter dated 24.09.2003 is extracted hereinbelow: No.ACIT/Cir.13(1)/Audit/2003-04/499 Office of the Asstt.Commissioner of I. Tax Circle-13(1), New Delhi Dated: 24.09.2003 To The Sr. Receipt Audit Officer ITAP-13 Room No. 156 C. R. Building, NEW DELHI Sir, Sub: Audit Objection regarding short recovery of tax in the case of M/s. Nokia India Ltd. Asstt. Year 1999-2000 Please refer to Audit Memo No. 268 dated 3.7.2003 in the above case. The audit scrutiny rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther submitted that the CIT (A) is not justified in disallowing the ground of appeal of the assessee as relates to issuance of notice u/s. 148 for change of opinion. The first notice was as per law withdrawn. Thus, there was no necessity to issue second notice merely on the ground of change of opinion. 15. The Ld. DR relied on the Assessment Order and the order of the CIT(A) and submitted that the appeal of the revenue be allowed on merit. 16. We have perused all the records and heard both the parities. It is found that the Ld. AR was right in its contention that there was a change of opinion which was clearly seen in the letter produced before us dated 24/9/2003 sent to Senior Receipt Audit Officer. In the said letter, the stand of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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