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TMI Blog2021 (3) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... for reopening an assessment beyond a period of 4 years as stipulated under the Act. The reasons recorded also reveal that, there has been no new material available with the Ld.AO which could justify the reopening of a concluded assessment beyond a period of 4 years. We set aside and quash the notice dated 17/05/2016 seeking to reopen a concluded assessment to be bad in law. As we have set aside and quashed the notice of reopening, consequential assessment order passed by the Ld.AO stands to be quashed and set-aside. Appeal filed by assessee stands allowed. - ITA No.51/Bang/2019 - - - Dated:- 8-3-2021 - Shri. B.R Baskaran, Accountant Member And Smt. Beena Pillai, Judicial Member For the Assessee : Shri C Ramesh, C.A For the Revenue : Shri Kannan Narayanan, JCIT (DR) ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present appeal has been filed by assessee against order dated 22/11/2018 passed by the Ld.CIT (A)-4, Bangalore for assessment year 2013-14 on following grounds of appeal: 1. The order of the learned Commissioner of Income Tax (Appeals)-4, Bangalore is opposed to the facts of the case and law applicable to it. 2. The learned Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked. i) Rallies India Ltd Vs. ACIT Another (2010) 323 ITR 54 (Bom) ii) CIT V. (I) Kelvinator of India Ltd (ii) Eicher Ltd (2010) 320 ITR 561 (SC) iii) Asian Paints Ltd V. Deputy Commissioner of Income Tax Another (2009) 223 CTR 141 (Bom) iv) CIT V. Younus Kunju (1997) 228 ITR 147 (Kerala) 10. The learned Commissioner of Income Tax (Appeals) erred in ignoring the position of law laid down by the Hon'ble Supreme Court in the case of ACIT V. Dhirendra Hansraj Singh, S.L.P (C) No.32237 of 2018 wherein it is held that: when there is no failure on the part of the assessee to disclose all material facts at the time of original assessment, provisions of section 147 of the act cannot be invoked after a period of four years from the end of the assessment year. 11. The learned Commissioner of Income Tax (Appeals) erred in following the ratio laid down by Hon'ble Supreme Court in the case of Kalyanji Mavji Co., V. CIT(S) 102 hR 287 (SC) ignoring the fact that, the said decision is for the A.Y.1956-57 and on the position of law as it stood in 1922 Act and there has been various amendments to the said provisions consequent to the introduction of 1961 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;Breakages and Damages' is only a provision and is not an a ertained liability as on the Balance Sheet date. The assessee company, vide its submissions dated 3.6.13 at Sch. 19 under the Head 'Significant Accounting Policies and notes to Accounts at Sl. No. 19 (Pg. 16) Stock Statements) has in a 'Note' mentioned that the breakages and shortages debited by the company is by way of Provision pending receipt of details from KSBCL . Hence, as the liability has not crystallized into an expense, the deduction is not an allowable deduction. ii) Further, the assesee debited ₹ 66,31,408/- towards Arrack Rentals for which clear details are not forthcoming in the assessment records. It is seen that the expenditure pertains to A.Y. 2001-02 which is arising out of a demand raised by the Dy. Commissioner of Excise, Govt. of Karnataka during the F.Y.2010-11 vide his order dated 17.6.2010 and paid by the assessee company on 30.8.2010. As no provision appears to have been made in the FY 2001-02 towards this expenditure, the expenditure debited to the profit and loss account for the FY relevant to the AY 2011-12 partakes the character of a 'prior period expense' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also include true and correct state of law derived from relevant judicial decisions either of the I.T. authorities or Courts of law. Whether the ground on which the original assessment is based, is held to be erroneous by Supreme Court in some other case, that will also amount to a fresh information which comes into existence subsequent to the original assessment. Taxpayer would note allowed to take advantage of an oversight or mistake committed by the taxing authority as held in the case of Kalyanji Mavji Co. Vs CIT(S) 102 ITR 287. The basis for reopening of the assessment would certainly be the source of information. When an income liable to tax has escaped assessment in the original assessment proceedings due to oversight and inadvertence or a mistake committed by the ITO, he has jurisdiction to re-open the assessment. Reassessment is permissible even if the information is obtained after proper investigation from the material on record or from any enquiry or research into facts or law. In view of the above discussion, I am of the considered opinion that the Assessing Officer has got jurisdiction in reopening the assessment by issuing notice u/s,148 of the Act and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld.DR submitted that the reassessment notice the present case is valid and that the disallowances made by the Ld. AO could not have been allowed as an expenditure. He reiterated the observations of Ld.CIT(A) that, even if the information was obtained after proper investigation from the materials on record or from any enquiry research into the facts or law, the reassessment is permissible. 18. We have perused submissions advanced by both sides in light of records placed before us. 19. Primarily, we observed that the Ld.CIT(A) has recorded that the basis of reopening is certainly the source of information that is already available on record. The Ld.CIT(A) further records that in the original assessment proceedings due to oversight and inadvertence or a mistake committed by the ITO, the incumbent assessing officer has jurisdiction to reopen the assessment. 20. This itself makes it clear that there was no fresh materials available on record for initiating the reassessment proceedings. The reopening of assessment beyond a period of 4 years have been proceeded with by the Ld.AO based on the materials available on record. 21. From the replies furnished by assessee during ..... X X X X Extracts X X X X X X X X Extracts X X X X
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