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TMI Blog2017 (6) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... ange of opinion, which is impermissible. In these circumstances, the reopening of the assessment is held to be bad in law and consequently quashed. Disallowance of the deduction u/s.36(1)(viia) - Held that:- A perusal of the order of the Ld.CIT(A), in the present appeal clearly shows that the Ld.CIT(A) has only confirmed the order of the AO in the regular assessment and has also confirmed his proposal for enhancement by restricting deduction liable u/s.36(1)(viia) of the Act without dealing with the objections raised by the assessee. This being so, in the interest of natural justice, the entire gamut of the claim of deduction u/s.36(1)(viia) is restored to the file of the Ld.CIT(A) for re-adjudication de novo after granting the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.03.2014. The Ld.AR drew our attention to the Assessment Order dated 26.03.2015 at Page No.2 wherein the reasons have been extracted for the purpose of re-opening. It was a submission that reopening having been done by issuance of notice u/s.148 on 20.03.2014 and the same was beyond the period of four years. It was a submission that a perusal of the reasons recorded clearly showed that when the original assessment was completed u/s.143(3) on 28.10.2010, the AO had considered the deduction u/s.36(1)(viia) of the Act and the re-opening was done only for the purpose of enhancing the disallowance on a change of opinion. It was a submission that there was no fresh information available with the AO for the purpose of re-opening and even a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he foundation for the formation of opinion that the income of the assessee has escaped assessment. This should be coupled along with the requirement that there was a failure on the part of the assessee to disclose fully and truly of material facts necessary for the assessment. In the present case, for the AY 2008-09, a perusal of the reasons recorded shows that neither fresh information was in the possession of the AO nor the AO has recorded anywhere that the income of the assessee escaped assessment by stating the reasons of failure on the part of the assessee to disclose fully and truly of material facts necessary for his assessment for that AY. This being so, we are of the view that the re-opening by the AO upheld by the Ld.CIT(A) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of this order in ITA No.767/Mds/2017, we have already quashed the re-opening of the assessment for the AY 2008-09 for the purpose of restricting the deduction u/s.36(1)(viia) of the Act. A perusal of the order of the Ld.CIT(A), in the present appeal clearly shows that the Ld.CIT(A) has only confirmed the order of the AO in the regular assessment and has also confirmed his proposal for enhancement by restricting deduction liable u/s.36(1)(viia) of the Act without dealing with the objections raised by the assessee. This being so, in the interest of natural justice, the entire gamut of the claim of deduction u/s.36(1)(viia) is restored to the file of the Ld.CIT(A) for re-adjudication de novo after granting the assessee adequate opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of restricting the allowance which has been granted in excess has resulted in income chargeable to tax escaping assessment. In view of the Explanation-1 and also Explanation-2(c) to Sec.147, the re-opening has been done within four years from the end of the relevant AY, we are of the view that the reopening is valid. 13. It was further submitted by the Ld.AR that the notice issued u/s.143(2) referred to the return filed by the assessee on 28.09.2009 and the notice having been issued on 15.09.2014, the notice was barred by limitation and the consequent assessment was liable to be annulled. 14. In reply, the Ld.DR vehemently supported the orders of the AO and the Ld.CIT(A). 15. A perusal of the Assessment Order clearly shows th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udication. On similar lines, the issue in respect of this AY is also restored to the file of the Ld.CIT(A) for de novo re-adjudication after granting the assesse adequate opportunity of being heard. 19. In the result, the appeal filed by the assessee for the AY 2009-10 is partly allowed for statistical purposes. ITA Nos.770 771/Mds/2017 for AY 2010-11 2011-12: 20. ITA No.770/Mds/2017 is an appeal filed by the assesse for the AY 2010-12 and ITA No.771/Mds/2017 is an appeal filed by the assesse for the AY 2011-12. It was fairly agreed by both the sides that the submission in regard to the AY 2009-10 in ITA No.759/Mds/2017 would apply to both ITA Nos.770 771/Mds/2017. 21. We have considered the rival submissions. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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