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TMI Blog2018 (3) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... AND PAVAN KUMAR GADALE, JUDICIAL MEMBER For The Assessee : Shri S.S.Podar/ N.Kedia, ARs For The Revenue : Shri Saad Kidwai, CIT DR ORDER Per Pavan Kumar Gadale, JM The cross appeals filed by the assessee are directed against the order of the CIT(A), Cuttack dated 9.5.2014 for the assessment year 2009-2010. 2. Ground No.4 of appeal was not pressed by ld A.R. of the assessee, hence, same is dismissed as not pressed. 3. Although the assessee has raised various grounds of appeal but the effective issue agitated before us as to whether the CIT(A) was justified in confirming the reassessment order passed u/s.147/251/154/143(3) of the Act. 4. The brief facts of the case are that the assessee filed its return of income for the assessment year 2009-2010 on 23.9.2009 disclosing taxable income of ₹ 275926.69 lakhs. Thereafter, the assessee filed revised return of income on 29.7.2010 disclosing taxable income of R.275926.69 lakhs. The Assessing Officer, on perusal of the assessment record, noticed that income chargeable to tax has escaped assessment on account of incorrect valuation of closing stock of coal and incorrect allowance of depreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the CIT(A) has not considered the submissions of the assessee and also the assessment was based on the same set of facts and change of opinion and the CIT(A) has erred in confirming the reassessment order and consequently the additions. Ld A.R. emphasised that in earlier assessment year i.e. 2008-09, the revenue has taken the stand that the reopening of assessment u/s.147 was made on the basis of audit objection. This year also, the revenue has reopened the assessment on the basis of same set of facts which were available to the Assessing Officer in the original assessment u/s.143(3) of the Act. On perusal of record, we found that notice u/s.148 of the Act was issued on 1.7.2013 and the original assessment u/s.143(3) was completed on 30.12.2011. We found that the reassessment proceedings have been initiated within four years from the date of order u/s.143(3) of the Act. On a query from the bench to ld A.R. to explain the reasons recorded for reopening the assessment, the ld A.R. demonstrated with copy of reasons recorded for reopening of assessment, which is as under: REASONS RECORDED FOR RE-OPENING THE ASSESSMENT U/S.147. In the instant case, an assessment was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expense in foreign currency to the tune of ₹ 459.67 lakhs against which no tax was deducted u/s.195(1) of the I.T. Act,1961. Therefore, the same attracted the provision of section 40(a)(ia) of the I.T.Act,1961 and escaped assessment. 5 . Disallowance u/s. section-43B . As per coiumn-21(B) and annexure-7A to form No.3CD , the tax auditor had certified that an amount of ₹ 3845.34 lakhs Of the statutory dues was remained unpaid on the due date of filing of return. But, in the statement of computation of income, the amount of ₹ 3469.04 lakhs (3845.34 lakhs -376.30 lakhs) was added back. Since the amount of ₹ 376.30 lakhs of statutory dues was not actually paid into the Government account as certified by the tax auditor on or before the due date of submission of return, such expense is not deductible u/s.43B of the I.T. Act, 1961. Thus, the amount of ₹ 376.30 lakhs has escaped assessment. 6. Claim of expense towards penalty for service tax. The Tax Auditor in his certificate in form No.3CD at column-17(e)(i) had certified that ₹ 355.47 lakhs being penalty for service tax which is debited in P L account. As per the provision contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and gathered even when no specific question or query in writing had been raised by the Assessing Officer. The aspects and questions examined during the course of assessment proceedings itself may indicate that the Assessing Officer must have applied his mind on the entry, claim or deduction etc. It may be apparent and obvious to hold that the Assessing Officer would not have gone into the said question or applied his mind. However, this would depend upon the facts and circumstances of each case. 12. The Hon ble Delhi High Court in the case of Commissioner of Income Tax v. Eicher Ltd., (2007) 294 ITR 310 (Delhi), after making reference to different judgments of various High Courts, observed that if the entire material had been placed by the assessee before the Assessing Officer at the time when the original assessment was made and the Assessing Officer applied his mind to that material and accepted the view canvassed by the assessee, then merely because he did not express this in the assessment order, that by itself would not give him a ground to conclude that income has escaped assessment and, therefore, the assessment needed to be reopened. On the other hand, if the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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