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TMI Blog2018 (5) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... in a manner which allowed some income of the assessee to have escaped assessment to tax. As such there is nothing wrong with the directions given by the said appellate authority. No substantial question of law is involved. - G.A no.640 of 2016 ITA/T no.128 of 2016 ITA no. 16 of 2017 - - - Dated:- 11-5-2018 - Aniruddha Bose And Arindam Sinha, JJ. Mr. Vipul Kundalia, Adv. Mr. Siddhartha Lahiri, Adv. ..for the Appellant Mr. Ejaz Khan, Adv. Mr. Ranjan kr. Sinha, Adv. Mr. Dibyangshu Das, Adv. Mr. Pradip Kr. De, Adv. ..for the Respondent ORDER The Court: Assessee is a corporate body engaged in computer training and software development. During the relevant previous year the assessee made project exports to certain parties. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A). Revenue continuing to be aggrieved seeks to prefer this appeal against order dated 7th May, 2015 passed by the Income Tax Appellate Tribunal A Bench, Kolkata in ITA no.1055(KOL)/2010 pertaining to assessment year 2001/02. Of the questions suggested, Mr. Kundalia, learned advocate appearing for Revenue, pressed question (a) for admission of appeal. The said suggested question is as under: a) Whether on the facts and circumstances of the case the Learned Tribunal is correct in accepting the supplementary auditor s report dated 15th July, 2004 and amended Form 54F, which were filed by the assessee at the reassessment proceeding, contravening the judgment of the Apex Court in the case of CIT-Vs.- Sun Engineering Works Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or underassessment but to the entire assessment for the year and starts the assessment proceedings de novo giving the right to an assessee to reagitate matters which he had lost during the original assessment proceedings, which had acquired finality, is not only erroneous but also against the phraseology of section 147 of the Act and the object of reassessment proceedings Although section 147 is part of a taxing statute, it imposes no charge on the subject but deals merely with the machinery of assessment and in interpreting a provision of that kind, the rule is that that construction should be preferred which makes the machinery workable. Since the proceedings under section 147 of the Act are for the benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place. Mr. Khan submitted in the alternative that in any event the assessment in the proceeding under section 147 was in fact the first assessment. His client s case of reduced net profit was neither by way of reagitation nor review. Intimation is not assessment as had been held by Supreme Court in ACIT v. Rajesh Jhaveri Stock Brokers (P) Ltd. reported in (2008) 14 SCC 208. He relied on paragraphs 14 to 16 as are reproduced below: 14. It is to be noted that the expressions intimation and assessment order have been used at different places. The contextual difference between the two e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, or (b) no refund is due to him. It is significant that the acknowledgment is not done by any assessing officer, but mostly by ministerial staff. Can it be said that any assessment is done by them? The reply is an emphatic no . The intimation under section 143(1)(a) was deemed to be a notice of demand under section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under section 143(1(a), the question of change of opinion, as contended, does not arise. The facts have been set out above. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment under section 147, unworkable. By Sun Engineering (supra) Supreme Court declared that assessee cannot seek, inter alia, review in reassessment proceeding under section 147. In Kelvinator (supra) Supreme Court said AO can reassess but not review. The higher total income of ₹ 2,49,52,270/- found by the AO was assessed on the basis of reduced profit resulting from sales return. Sales return was the cause, as per the assessee, the effect of which was reduction in the profit figure qualifying for deduction under the provisions of section 10A of the Act. The exercise that resulted in the intimation, done on the basis of material and evidence then available, cannot be said to have been done in a manner which allowed some in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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