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TMI Blog2020 (11) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... resent assessing officer. Since there is no new material available on record it will amounts to change of opinion/mind on the part of the AO - Assessment proceedings were reopened after 4 years from the date of end of relevant assessment year and assessing officer has not brought on record any material which suggests that assessee has failed to submit all the relevant information fully and truly at the time of filing the return of income or failed to substantiate any information at the time of original assessment. Ground raised by the assessee is accordingly allowed. - I.T.A. No. 3418/Mum/2018 - - - Dated:- 16-7-2020 - Shri Pawan Singh, JM And Shri S. Rifaur Rahman, AM For the Appellant : Shri Rajeev Wagle, AR For the Respondent : Shri V.Vinod Kumar Sr DR ORDER PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER: The present Appeal has been filed by the assessee against the order of Ld. Commissioner of Income Tax (Appeals) 3 in short referred as Ld. CIT(A) , Mumbai, dated 15.01.18 for Assessment Year (in short AY) 2009-10. 2. The brief facts of the case are, assessee filed its return of income on 30th September 2009 declaring total income of ₹ 56,77,82 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 for the A. Y. 2009-10 was invalid since the proviso to S. 147 clearly states that no reassessment can be done after the expiry of 4 years from the end of the relevant assessment year where the original assessment is made u/s. 143(3) and there is no failure on the part of the assessee to disclose fully truly the material, though not contended before him and the lower authority. 2. not appreciating that in terms of the proviso to S. 147 of I. T. Act, 1961 as stated in para 1 above, notice u/s. 147 could have been issued on or before 31.3.2014 i.e. 4 yrs. from the end of assessment year 2009-10 hence, the notice dated 23.3.2016 was invalid having been issued beyond 4 years and there was no failure on the part of the appellant to disclose fully truly the material, though not contended 4 before him and the lower authority. 3. not appreciating that the issue raised for the purpose of reassessment was highly debatable in the sense that it was a matter of interpretation and calculation as such there was no question of non- disclosure of any material on the part of the appellant, though not contended before him and the lower authority. 4. not appreciating that j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 2009-10 hence, the notice dated 23.3.2016 was invalid having been issued beyond 4 years and there was no failure on the part of the appellant to disclose fully truly the material, though not contended before him and the lower authority. Grounds of Appeal No. 5 :-not appreciating that the issue raised for the purpose of reassessment was highly debatable in the sense that it was a matter of interpretation and calculation as such there ,,vas no question of non- disclosure of any material on the past of the appellant, though not contended before him and the lower authority. 4. The above grounds of appeal do not require any additional evidence and can be decided on the facts of the case. 5. In the aforesaid circumstances, the Applicant would humbly request the Hon'ble Bench to allow them to take the additional grounds of appeal as mentioned in para 3 above as Grounds of Appeal No. 3, 4 5 at the time of hearing of the appeal on 21.1.2020. And the Applicant, as in duty bound, shall every pray. 6. Assessee has filed additional grounds of appeal objecting to the reopening of the assessment for which assessee has not filed any grounds of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In this aspect he relied the following case law: i) Venkatesan Raghuram Prasad versus ITO (2018) 94 Taxmann.com 249 (madras) ii) DCIT Vs. ICICI Bank (2019) (202 TTJ 560) iii) ITA No. 5822/mum/2013 ACIT versus Latin Manharlal Securities Pvt. Ltd. 8. On the other hand, learned DR submitted that assessee has not challenged the additional grounds of appeal on reopening of assessment before first appellate authority and he submitted that the reopening of assessment was properly made as per law. He supported the assessment order and submitted that the calculation given in the assessment order is proper and correct. 9. Considered the rival submissions and material placed on record. We notice that the reopening proceedings are initiated by the assessing officer after 4 years from the end of assessment year. There is no dispute that original assessment under section 143(3) of the Act was completed based on the information which is already available in assessment records. We also notice from the record submitted by the Ld AR that the internal auditors has raised objections on the method of calculation adopted by the assessee to claim deduction under section 36(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is evident from the bare perusal of the reasons recorded and even from the assessment order. The assessee has duly shown the tax liability under the normal provisions and also as per under section 115JB. The AO while computing the income in the original assessment under section 143(3) has taken note of this fact. So now, the AO cannot hold that such a tax liability computed by the AO is erroneous or there is any failure on the part of the assessee to disclose fully and truly all material facts. Thus, the conclusion of the CIT(A) for holding that, reopening of the assessment is bad in law is thus affirmed. Accordingly, we also direct that such an action initiated under section 148 should be quashed. 6. However, without prejudice on merits also, we find that Ld. CIT(A) has decided this issue in favour of the assessee after following the decision of Hon'ble Karnataka High Court in the case of CIT vs Horizon Capital Ltd (supra), wherein it has been held that, the assessee is entitled to rebate under section 88E of the Act in respect of STT paid where the income is assessed under section 115JB. Without there being any contrary decision brought to our notice, we do not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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