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TMI Blog2019 (9) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... n at the time of making original assessment. This fact is very much evident as the Assessing Officer passed order levying penalty u/s. 271BA of the Act for non-filing of Report from the Accountant as required u/s. 92E on 25-04-2011. The assessment order u/s. 143(3) is subsequent to the order levying penalty u/s. 271BA. Thus, no new incriminating material has come to the knowledge of Assessing Officer for reopening the assessment. It is a clear case of change of opinion. The Hon‟ble Supreme Court of India in the case of Commissioner of Income Tax Vs. Kelvinator of India Ltd. [ 2010 (1) TMI 11 - SUPREME COURT] has held that invoking the provisions of section 148 r.w.s. 147 by Assessing Officer on change of opinion is not permissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in action point no. 3 that Form 3EB must be furnished on or before the due date applicable to such person for filing its return of income for the relevant assessment year. iii) The appellant craves leave to add, amend or alter any of the above grounds of appeal. 3. The assessee has supported the findings of Commissioner of Income Tax (Appeals) by way of Application under Rule 27 of the Income Tax Appellate Tribunal Rules, 1963. The same are under : 1] The respondent company submits that the reopening u/s. 148 is bad in law since it is based on change of opinion and accordingly, the reasst. order passed u/s. 147 is not justified in law. 2] The respondent compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appeal has entered into international transactions. Thus, the provisions of section 92CA of the Act were attracted. The assessee filed its return of income for the impugned assessment year on 30-09-2018 declaring loss of ₹ 12,61,94,699/-. The assessment order u/s. 143(3) r.w.s. 144C(1) was passed on 07-12-2011. Thereafter, the Assessing Officer reopened the assessment on the ground that the assessee has not filed audit report in the Form No. 3CEB as mandated under the provisions of section 92E of the Act. In the absence of audit report the return is defective. Since, the assessee has failed to rectify the defect within the time limit prescribed, the return cannot be construed as valid return. The Assessing Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer that the assessee has failed to file report in Form 3CEB, despite that the Assessing Officer proceeded with the assessment and passed the assessment order on 07-12-2011. There was no fresh tangible material that had come to the notice of Assessing Officer for reopening the assessment. Thus, reopening is a result of change of opinion‟ which is not permissible in the light of various judicial pronouncements. 5.3 Aggrieved against the reassessment order dated 11-03-2014 the assessee filed appeal before the Commissioner of Income Tax (Appeals) challenging reopening of assessment as well as addition on merit. The First Appellate Authority rejected assessee‟s ground challenging reopening of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Act, the return shall be treated as an invalid return and the provisions of this Act shall apply as if the assessee had failed to furnish the return : Provided that where the assessee rectifies the defect after the expiry of the said period of fifteen days or the further period allowed, but before the assessment is made, the [Assessing] Officer may condone the delay and treat the return as a valid return. A bare perusal of provisions of sub-section (9) reveal that where the return of income furnished by the assessee is defective, for whatever reasons, the Assessing Officer shall intimate the defect to assessee and give him an opportunity to rectify the defect within a period of 15 days from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intimation to the assessee regarding defect in the return of income, the Assessing Officer cannot declare the return invalid. We do not find any merit in the grounds raised by the Revenue. The same are dismissed, accordingly. 9. The assessee has filed an application under Rule 27 assailing the action of Commissioner of Income Tax (Appeals) in upholding validity of reopening u/s. 148 of the Act. 10. A perusal of reasons recorded for reopening reveal that the Assessing Officer invoked the provisions of section 148 as the assessee has not filed requisite Report in Form No. 3CEB along with the return of income for the impugned assessment year. In the absence of such Report, the return was held as invalid. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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