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TMI Blog2018 (11) TMI 1649X X X X Extracts X X X X X X X X Extracts X X X X ..... n holding that the initiation of reassessment proceedings u/s. 147 is bad in law and the first appellate order is correct in quashing the initiation of reassessment and all consequent proceedings and orders including impugned reassessment and first appellate order. Benefit of the ratio of the decision of Hon ble Delhi High Court in the case of Consolidated Photo Finvest Ltd. [ 2006 (1) TMI 59 - DELHI HIGH COURT] is not availed for the Revenue as it was not a case of change of opinion and initiation of reassessment beyond four years of relevant assessment year. Therefore, we respectfully hold that the benefit of ratio of this decision having dissimilar facts and circumstances from the present case is not available in favour of the Revenue in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble CIT(A) ought to have upheld the order of the Assessing Officer. 3. It is therefore prayed that the order of the Hon'ble CIT-(A) be set aside to the above extent and that of the Assessing Officer be restored to the above extent. 3. We have heard the arguments of both sides and carefully perused the relevant material placed on the record of the Tribunal. The ld. Departmental Representative (DR) submitted that the ld. CIT(A) has erred in low and on facts, in deleting the addition of ₹ 4,04,27,421/- and ₹ 1,53,31,244/- made on the legal ground that the re-assessment proceedings initiated u/s. 147 of the Income Tax Act, 1961 (in short 'the Act') was bad in law and directed to be quashed. The ld. DR submitted that from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order, therefore it is a clear case of change of opinion only on the basis of amendment in the provision of s. 40A(3) of the Act therefore, the same is not sustainable and was rightly quashed by the ld. CIT(A) being bad in law. 6. The ld. DR also drew our attention towards relevant paras 5.1 to 5.5 of the first appellate order and submitted that in absence of any fresh material the reassessment of original assessment tantamount to change of opinion, which is not permissible u/s. 147/148 of the Act therefore, the AO was not in reopening the assessment order passed u/s. 143(3) of the Act. 7. Placing reliance on the decision of Hon'ble Delhi High Court (full Bench) in the case of CIT vs. Usha International Ltd. 348 ITR 485 (Del.), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TDS was required to be made on above payments. Thus provisions of section 194C of the IT Act were violated. Therefore payment amounting to ₹ 4,04,27,421/- required to be disallowed under section 40(a)(ia) of the Act were not disallowed which resulted in under assessment of income of ₹ 4,04,27,421/-. (B) The assessee had debited P&L A/c. for ₹ 11,71,92,053/- on account of transportation charges out of that ₹ 7,67,64,632/- was paid in cash and ₹ 7,66,56,222/- was exceeding ₹ 20,000/. As per the provision of section 40A(3) of the Act, ₹ 1,53,31,244/- (20% of ₹ 7,66,56,222/-) was required to be disallowed and added back in assessee's income." 9. From the relevant part of the first appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escaped assessment for such assessment year by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year otherwise reopening of assessment order framed under scrutiny u/s. 143(3) of the Act cannot be made. 11. In the present case, the initiation of reassessment proceedings of assessment order passed u/s. 143(3) of the Act has been made beyond four years by issuing notice u/S. 148 of the Act on 22.06.2010 without any allegation that the income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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