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TMI Blog2019 (4) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... / adjusted during the year and when this is admitted position of fact that payment was not made in the present year and there is no evidence to claim in the tax audit report, in our considered opinion, the reopening is valid because at the stage of reopening, only a prima facie case has to be made out by the AO that some income has escaped assessment and the AO has done so in the present case. In this view of the matter, we uphold the reopening. Ground no. 2 is rejected. Merit of the disallowance u/s 43B - HELD THAT:- The claim of the assessee is this that in earlier year, certain provisions was made and the same was disallowed in the respective year u/s. 43B and in the present year, such provision is reversed by debit to provision acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;], upholding the order passed under section 147 read with section 143(3) of the Income-tax Act, 1961 (`the Act'). be struck down as invalid, as the order is bad in law and on facts. 2. Lack of jurisdiction to initiate action under section 147 of the Act 2.1. The learned CIT(A) has erred in upholding the validity of the reassessment proceedings and failed to appreciate that the proceedings initiated under section 147 of the Act are invalid, unlawful and grossly without jurisdiction, as pre-conditions prescribed in law were not satisfied. 2.2. The learned CIT(A) has erred in law, in upholding the initiation of the reassessment proceedings by the learned AO by disregarding the settled positions of law. 2.3. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground raised by the Appellant that the learned AO has wrongly computed interest under section 234B(1) of the Act on total income determined on the reassessment order as against the tax determined in the regular assessment. 4.2. The learned CIT(A) has erred in not adjudicating on the ground raised by the Appellant that the learned AO has wrongly computed interest without considering the foreign tax credit claimed by the Appellant, thereby levying excess interest under section 234B of the Act. 4.3. The learned CIT(A) has erred in law and on facts, by directing the learned AO to verify the foreign tax credit claimed by the Appellant to compute interest under section 234B, without appreciating the fact that the learned AO has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these facts, the reopening is not valid. The ld. DR of revenue supported the orders of authorities below. 5. We have considered the rival submissions. This issue regarding reopening of assessment was decided by CIT (A) as per paras 3.2 to 3.5 of his order and these paras are reproduced hereinbelow for ready reference. 3.2 FINDINGS I have given my careful consideration to the arguments of the appellant and the contentions of the AO. It is seen from record that the assessee company had filed its original return on 01.11.2004 and a revised return was filed on 26.10.2005. Order u/s 143(3) was passed on 29.12.2006. Notice under section 148 was issued on 18.02.2011 broadly for the reason that the claim for allowability of registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al assessment. Therefore, it is incorrect to say there is any change of opinion. 3.5 Considering the above, the action of the AO to reopen the assessment is upheld. This ground is therefore dismissed. 6. From the above paras reproduced from the order of CIT (A), it is seen that as per tax audit report, it was stated that this claim is u/s. 43B and this is accepted factual position that no payment was made in the present year and therefore, deduction u/s. 43B is not allowable in the present year u/s. 43B. As per the relevant portion of tax audit report on pages 90 and 91 of paper book, it is seen that it has been shown that property registration fees was paid out of opening balance of ₹ 96 Lakhs which has been paid during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of such provision which is already disallowed in the year of provision, amount credited to the rent account in the present year cannot be brought to tax in the present year and therefore, disallowance made by the AO is not sustainable. The ld. DR of revenue supported the orders of authorities below. He also submitted that even if this claim of the assessee is accepted then for factual verification, the matter should be restored back to the file of AO. 8. We have considered the rival submissions. We find that the disallowance was made by the AO and confirmed by CIT(A) on this basis that the assessee has claimed deduction u/s. 43B but the claim is not supported by any proof of payment in the present year. In view of the arguments made by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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