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TMI Blog2018 (2) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. Thus powers u/s 147/148 is to reassess and not to review the decisions of the AO as change of opinion is not permissible for reopening of the concluded otherwise there will be no end to litigation. - Decided in favour of assessee. - I.T.A. No. 4815/Mum /2016 - - - Dated:- 12-2-2018 - Shri C. N. Prasad, Judicial Member And Shri Ramit Kochar, Accountant Member Assessee by : Surji Chheda Revenue by : Shri. Ram Tiwari ORDER Per Ramit Kochar, Accountant Member This appeal, filed by the Revenue , being ITA No. 4815/M um/2016 for the assessment year 2008-09 is directed against the appellate order dated 18.04.2016 passed by learned Commissioner of Income-tax (Appeals)- 5, Mumbai (hereinafter called the CIT(A) ) for assessment year 2008-09, appellate proceedings had arisen before learned CIT(A) from the assessment order dated 27-03-2014 passed by learned Assessing Officer (hereinafter called the AO ) u/s 143(3) r.w.s 147 of the Income-tax Act, 1961 (hereinafter called the Act ). 2. The grounds of appeal raised by the Revenue in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called the tribunal ) read as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t entry dated 21.03.2013 , the details of which are as under:- In this case, the assessment was completed u/s 143(3) on 29-10-2010 determining the total income at ₹ 1,28,86,700/- and Book profit u/s115 JB at ₹ 8,64,93.460/-. On verification of the records, it is seen as follows:- The assessee originally filed return of income for A.Y 2008-09 in the month of September 2008, where in deduction u/s. 80IC, was not claimed. The books of accounts were audited and the requisite certificate in Form 3CD w.r.t. original return was issued on 19.9.08 by Chartered Accountant firm, namely M/s. Gala Parikh and Associates. As assessee company was certified ineligible for deduction u/s 80IC. Assessee company paid the entire tax dues by way of self assessment tax. The assessee company subsequently got its account re-audited by another Charted Accountant firm namely M/s. Kaushik Das and Associated on 22.2.2010 and obtained revised 3CD report and certificate in Form 10CCB and claimed deduction u/s. 80IC of ₹ 7,52,48,284/- Assessee filed revised return in the month of February 2010 in order to claim aforesaid deduction u/s. 80IC. The deduction u/s. 80IC claimed with ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n form no. 10CCB to claim the deduction u/s 80IC was also obtained on 22.02.2010 and hence the AO held that the deduction cannot be allowed to the assessee u/s. 80IC of the 1961 Act keeping in view provisions of Section 80AC which is reproduced hereunder:- 80 AC Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-IA or section 80-IAB or section 80-IB or section 80-IC or section 80-1D or section 80-IE, no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139. As the assessee did not file its claim for deduction u/s 80IC in the return of income filed u/s 139(1) but raised such claim only in the revised return of income filed u/s 139(5) beyond the time stipulated u/s 139(1) , the AO disallowed the claim of deduction u/s 80IC keeping in view provisions of Section 80AC, vide assessment order dated 27-03-2014 passed u/s 143(3) r.w.s. 147 of the 1961 Act. 4. Aggrieved by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith reference to revised return was admitted and was restricted to ₹ 6,90,45,684/- for reason recorded in the assessment order u/s 143(3). On verification of the records, it is seen that: (a) Assessee company had not claimed deduction u/s 80IC in the original return of income filed u/s 139(1), as mandatorily required under the provision of section 80IC. (b) Section 139(5) of the Act permits filing of revised return if assessee discovers any bonafide omission or wrong statement. In this case revised return was filed in view of change of opinion expressed by another accountant that too at a later date. (c) The mandatory certificate required in Form 10CCB was also obtained on 22.02.2010. From this, it is obvious that deduction claimed cannot be construed as claimed within the due date specified u/s 139(1). Accordingly, the assessee had failed to fulfil mandatory condition of filing return of income within time limit stipulated u/s 139(1) and entertaining the claim of deduction with reference to revised return in the scenario cited above was against the provision of section 80IC as well as the legislative intent behind it. Thus, the deduction u/s 80I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns recorded that there was no new tangible material before the AO, hence reopening of the assessment merely on change of opinion or to review completed assessment without any material facts does not confer jurisdiction of reassessment in view of the decision in the case of CIT v. Kelvinator Ltd. 320 ITR 561. Further it is also clear on perusal of original assessment that AO had considered the revised return and also Form No. 10CCB and raised a query. After raising the query AO recomputed the 80IC deduction claimed by the appellant. In such a situation Bombay High Court in the case of GNK Sinter Metals Ltd. v. Ms. Ramapriya Raghvan, acit(2015) 114 dtr 121 (Bom)(High Court) held that once a query has been raised during the assessment proceeding and assessee has responded to the query to the satisfaction of the AO then it must follow that there is due application of mind of AO to the issue raised, hence merely due to change of opinion, assessment cannot be reopened. /same view is also held in Asteroids Trading and Investments (P) Ltd. v. DCIT(2009) 308 ITR 190 (Bom.)(HC), Asian Paints Ltd. v. DCIT(2009) 308 ITR 195(Bom)(HC). 3.5 It is clear from the above decisions that AO had re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction u/s. 80IC which was not claimed in the original return of income filed by the assessee with Revenue u/s 139(1) infringing Section 80AC , while the same was claimed in revised return of income filed by the assessee with Revenue on 25-02-2010 u/s 139(5) of the 1961 Act. It was submitted by learned DR that the case of the assessee was reopened by the AO u/s 147 after recording reasons for reopening of the concluded assessment and the reasons were duly furnished by the AO to the assessee and also objections raised by the assessee to the reopening of the assessment u/s 147 was disposed of by the AO in compliance with the decision of Hon ble Supreme Court in the case GKN Driveshafts (India) Ltd. v ITO (2002) 259 ITR 19(SC). It was submitted by learned DR that for claiming deduction u/s. 80IC , it is mandatory to file return of income in time u/s. 139(1) and filing of return of income either u/s. 139(4) or 139(5) will not be treated as compliance. It was submitted by learned DR that as original assessment was framed u/s. 143(3) by the AO, deduction u/s 80IC was allowed erroneously by the AO which was later denied by Revenue keeping in view provisions of section 80IC r.w.s. 80AC. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. It was submitted that original assessment order dated 29-11-2010 framed by the AO u/s 143(3) is placed in paper book/page 40-44. It was submitted that although the claim of deduction u/s 80IC was made in revised return of income but the same was supported by revised tax audit report in form no 3CB/3CD and certificate in form no 10CCB issued by chartered accountant. It was submitted by learned counsel for the assessee that there was a proper application of mind by the AO while framing assessment order dated 29-11-2010 passed by the AO u/s. 143(3). The original as well revised tax-audit reports , certificate in form no. 10CCB as well revised return of income are placed in paper book filed by the assessee with the tribunal. Our attention was also drawn to page no. 39 wherein reply was submitted by the assessee before the AO during the course of assessment proceedings. Our attention was also drawn to page no. 47 to 51/paper book wherein the assessment order dated 24-12-2009 passed by Revenue u/s 143(3) for assessment year 2007-08 is placed , wherein deduction u/s. 80IC was allowed by the AO. Our attention was also drawn to page no. 59 of the paper book wherein assessee has submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was reopened u/s 147.The assessee also relied upon the decision of the Hon ble Gujarat High Court in the case of Gujarat Paguthan Energy Corporation Private Ltd. v. DCIT reported in (2014) 45 Taxman.com 564(Guj) and decision of Hon ble Bombay High court in the case of M.J. Pharmaceuticals Limited(2008)297 ITR 119(Bom.) and it was submitted that reopening of concluded assessment cannot be made based on change of opinion as in the instant case it was merely change of opinion by the Revenue as no new incriminating material has come into possession of the AO . The assessee relied on the decision of Hon ble Bombay High Court in the case of Asian Paints Limited (2009) 308 ITR 195(Bom.) and also decision of Hon ble Bombay High Court in the case of Asteroids Trading and Investments P. Ltd v. DCIT reported in (2009) 308 ITR 190(Bom.). The assessee also relied upon the decision of Hon ble Bombay High court in the case GKN Sinter Metals Ltd. v. ACIT reported in (2015) 371 ITR 225(Bom). The assessee on merit drew our attention to para no. 3.6 of the appellate order of the learned CIT-A . The assessee relied upon decision of ITAT- Ahmadabad in the case of Parmeshwar Cold Storage Private Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed on the grounds of allocation between eligible and non eligible unit. The assessee obtained revised tax-audit report dated 22-02-2010 in form no. 3CA/3CD as is required u/s 44AB and also certificate in form no. 10CCB dated 22-02-2010 from another chartered accountant who in his report opined that the assessee is entitled for deduction u/s 80IC of the 1961 Act with respect to Haridwar unit. Thereafter, the assessee armed with allowability of its claim for deduction u/s 80IC for AY 2007-08 by Revenue in assessment framed u/s 143(3) for preceding year i.e. AY 2007-08 as also by tax-audit report and certificate in form no 10CBB issued by a chartered accountant for AY 2008-09 filed revised return of income u/s 139(5) with Revenue on 25-02-2010 wherein the assessee made an claim for deduction u/s 80IC w.r.t. Haridwar unit which was not originally claimed in the return of income filed by the assessee with Revenue u/s 139(1). This revised return of income was filed by the assessee with Revenue within time stipulated by statute u/s 139(5) of the 1961 Act. Thereafter, Revenue framed an assessment u/s 143(3) of the 1961 Act vide orders dated 29-11-2010 wherein the AO partly allowed the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Haridwar unit for AY 2007-08. The only dispute surviving between rival parties as supported by grounds of appeal raised in memo of appeal filed by the Revenue with the tribunal for the impugned assessment year is w.r.t. non filing of the said claim of deduction u/s 80IC by the assessee in the return of income filed u/s 139(1) on the grounds that it infringes upon provisions of Section 80AC of the 1961 Act as the said claim for allowability of deduction u/s 80IC was filed for the first time by the assessee in the return of income filed u/s 139(5) of the 1961 Act for the impugned assessment year and not in the return of income filed u/s 139(1) and it is alleged by Revenue that the AO while in assessment proceedings u/s 143(3) r.w.s. 143(2) failed to take notice of the said fact which in the opinion of Revenue constituted tangible incriminating material calling for interference u/s 147/148 of the 1961 Act. In our considered view, the AO has duly deliberated the claim of deduction filed by the assessee u/s 80IC in the revised return of income filed on 25-02-2010 while framing assessment order dated 29-11-2010 u/s 143(3). The AO did considered revised return of income filed by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d u/s 139(1). It is not allowed to read words into taxing statute which are not mentioned therein by the legislature as it is not permissible to add or delete words in the taxing statute which are not there in the statute when the provisions of the statute is simple, plain , clear and unambigiuos . The taxing statute are to be strictly construed as per the language used by legislatures if the words used are simple , clear , plain and unambiguous. The law-makers have only stipulated that the assessee is required to file return of income u/s 139(1) in order to be eligible for claiming deduction u/s 80IC which assessee complied by filing return of income on 30-09-2008 u/s 139(1) albeit it filed its claim of deduction u/s 80IC for the first time for the impugned assessment year in the revised return of income filed on 25-02- 2010. The assessee had a bonafide reasons for filing claim of deduction u/s 80IC late for the first time in the revised return of income filed u/s 139(5). The claim of the assessee for AY 2007-08 u/s 80IC stood partly allowed by the AO vide assessment framed u/s 143(3) vide orders dated 24-12-2009 which on the touchstone of preponderance of probabilities triggered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate in form no. 10CCB and filed revised return of income u/s 139(5) on 25-02-2010 within time stipulated by provisions of 1961 Act wherein said claim of deduction u/s 80IC was filed which in our considered view is a sufficient compliance for claiming deduction u/s 80IC read in conjunction with Section 80AC keeping in view peculiar factual matrix of the case. It is a clear case of change of opinion by the AO as all the material facts were before the AO when assessment was framed u/s 143(3) vide assessment order dated 29-11-2010 wherein claim of deduction u/s 80IC was allowed by the AO. No doubt the assessment was reopened by the revenue within four years from the end of the assessment year but powers conferred on the Revenue u/s 147/148 is to power to reassess and not power to review. The AO in original assessment framed u/s 143(3) vide orders dated 29-11-2010 has elaborately discussed the issue of deduction u/s 80IC wherein revised return of income filed by the assessee on 25-02-2010 was duly considered by the AO while framing assessment u/s 143(3) and thus assessment order dated 29-11-2010 was passed by the AO u/s 143(3) was finalised by the AO after due application of mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d even if there is no failure on the part of the assessee to make full and true disclosure of all relevant material necessary for assessment, there is no bar/prohibition for issuing a notice u/s 147/148 for reopening of an assessment. It was observed by Hon ble Bombay High Court that thing to be examined is whether or not the AO had the reasons to believe that income chargeable to tax has escaped assessment while issuing notice u/s 148 but the reasons cannot be founded on the change of opinion. In the instant case before us, all the material was fully disclosed by the assessee and it was deliberated in detail by the AO before partly allowing the claim of deduction u/s 80IC in the original assessment u/s 143(3) wherein revised return as well revised tax audit report was before the AO. We are afraid that this decision is of no help to the assessee as this is a clear case of change of opinion which is not permissible in proceedings u/s 147/148 of the 1961 Act. b) Hon ble Kerala High Court decision in the case of National Tyres and Rubber Co of India Limited(Supra), in the said case the assessee did not returned capital gains u/s 45(2) on the sale of land and hence the AO also did n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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