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TMI Blog2022 (2) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... er considering relevant facts has rightly quashed the reopening of assessment. Hence, we are inclined to uphold order of the Ld. CIT(A) and dismiss revenue appeal. - ITA No. 3189/Chny/2019 - - - Dated:- 31-1-2022 - SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER Appellant by : None Respondent by : Dr. I.P. Roopa, JCIT ORDER Per G. Manjunatha, Accountant Member 1. The Revenue filed this appeal against the order of the Commissioner of Income Tax (Appeals)-1, Trichy, dated 10.09.2019 and pertains to assessment year 2010-11. 2. The Revenue has raised the following grounds of appeal: 1. The order of the learned CIT (Appeals], Trichy is contrary to the law, facts and circumstances of the case. 2. The Ld. CIT(A) failed to note(that reopening was done within four years from the end of the assessment year and requirement for re-opening that failure on the part of the assessee to disclose fully and truly all materials facts as specified in first proviso to Section 147 of the Act is not applicable^ 3. The Ld. CIT(A) failed to appreciate the facts that the Assessing Officer did not make elaborate discussion on the issue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similarly, the AO has made additions of ₹ 6 lakhs towards cash deposits on 20.02.2010 maintained with SBI by rejecting the explanation of assessee that the source for cash deposit is out of loan received from his wife Smt. R. Mageshwari. 5. Being aggrieved by the assessment order, the assessee preferred an appeal before the ld. CIT(A). Before the Ld. CIT(A), the assessee submitted that the return of income filed for the assessment year 2010-11 declaring income of ₹ 3,41,660/- and has been accepted the assessment was completed u/s. 143(3) after verification of bank account statement. 6. The Ld. CIT(A) after considering relevant submissions of the assessee and also by following the decisions of the Hon'ble Supreme Court and the Hon'ble High Court of Madras in the case of (i) ITO vs Sanjeev Ghei (2019) 104 Taxmann.com 81(SC), (ii) PCIT vs Century Textiles Industries Ltd. (2018) 99 Taxmann.com 206(SC), (iii) ITO Ward No. 16(2) vs TechSpan India (P) Ltd. (2018) 92 Taxmann.com 361(SC), (iv) Gay Travels (P) Ltd. vs DCIT, (2017) 85 Taxmann.com 131 (Mad), (v) TANMAC India vs DCIT, (2017) 78 Taxmann.com 155 (Mad) and came to the conclusion that as long as assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. 24.02.2010 ₹ 1,81,455/- Contract Receipts of ₹ 2,71,458/-credited in State Bank of India, consists of ₹ 1,81,455/- and ₹ 90,003/- 3. The Assessing Officer has added ₹ 6,00,00/- as unexplained investment, which is nothing but a loan received from Mrs. R. Mageswari on 20.02.2010. It was explained at the time of hearing that she is engaged in the business of buying and selling cashew nuts. She has received ₹ 6,00,000/- as advance from customers, winch was given to her husband as loan. The loan was repaid on 22.02.2010. She is having the PAN and filed the Income Tax Return for the subsequent years. 4. The Assessing Officer has made the above additions under surmise. I therefore request the honorable commissioner of Income Tax (Appeal), to direct the Assessing Officer to delete the erroneous addition, 2.4. Case was fixed for hearing on 26.03.2019, there was no attendance on this date. Case was heard on 09.04.2019 when the AR was asked to furnish balance sheet, P L Account for his wife, who has given loan in cash of ₹ 6,00,000/-. 2.5 AR s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned and that oven on merits his wife was a regular return filer and would have sufficient sources from earlier savings to have cash of ₹ 6,00,000/-. 3.2. It is undisputed fact that assessment was earlier completed u/s. 143(3) of IT Act, 1961. Over and above, what has been stated by AR reference can be made to the following cases which explain the intent and meaning of change of opinion and these cases along with headnotes are being reproduced below: Case-1 2019] 104 taxmann.com 81 (SC) SUPREME COURT OF INDIA Income-tax Officer v. SanjsevGhei* DR. D. Y. CHANDRACHUD AND HEMANT GUPTA, JJ SPECIAL LEAVE PETITION (CIVIL) DIARY NO. 4301 OF 2019, MARCH 8, 2019 Section 2(22), read with section 147 of the Income-tax Act 1961 -Deemed dividend (Loans or advances to shareholders) -Assessment year 2010-11 - For relevant year, assessment was completed in case of assesses determining certain taxable income -Subsequently, Assessing Officer received information from investigation Wing that assesses was a shareholder to extent of over 20% in '!' Ltd. and that, he had received a sum of ₹ 70 lakhs from said company - Assessing Officer tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 147, of the Income-tax Act, 1961 - Free trade zone -(Reassessment) - Assessment year 2001-02 - Whether where question as to how and to what extent deduction should be allowed under section 10A was well considered in original assessment proceedings itself, initiation of re-assessment proceedings under section 147 by issuing a notice under section 148 merely because now Assessing Officer was of view that deduction under section 10A was allowed in excess, was based on nothing but a change of opinion on same facts and circumstances which were already in his knowledge even during origins assessment proceedings - Held, yes [Para 13] [ Case 4 (2017) 85 taxmann.com 131 (Madras)HIGH COURT OF MADRAS Gay Travels (P.) Ltd. Deputy Commissioner of Income-tax, Company Circle II(2) Chennai-34* T.S. SIVAGNANAMJ W.P. NOS. 35606 35607 OF 2002 JULY 31, 2017 Section 148, read with section 2(14) of the Income-tax Act, 1961 - Income escaping assessment - Issue of notice for (Second Notice) - Assessment years 1997-98 and 1998-99 - Assesses sold its agricultural lands - Reassessment notice under section 148 was served upon assesses on grounds that land sold was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of opinion and hence are untenable. 7. Aggrieved by the order of the Ld. CIT(A), the Revenue has filed an appeal before this tribunal. The assessee challenged the reopening of the assessment on the ground that the AO has reopened the assessment on mere change of opinion without any fresh tangible material, which is evident from the fact that in the Proceedings the AO examined the cash deposits into the bank account. 8. The Ld. DR made the following submissions: 2. The addition to the total income is on account of unexplained credits appearing in bank account in excess of contractual receipts received during the year. The particulars provided in page 2 of the assessment order as brought on record that credits in bank account held by the assessee for ₹ 9,87,197/- stands unexplained. 3. The order u/s. 143(3) r/w 147 is passed subsequent to the objection raised by the revenue audit which has been accepted by the department hence filing of further appeal despite low tax effect, before the Hon'ble ITAT requires to be admitted. 4. For the sake of easier comprehend on the intriguing aspect of taxation, the content of the RAP objection is captured and prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning is certainly a clear reason to believe income had escaped assessment and not a case of change of opinion as wrongly made out by the CIT(A). 9. None appeared for the assessee. We have heard the Ld. DR and perused materials on record. We are of the opinion that the assessee has already disclosed all the information before the Ld. AO in the original proceedings itself and the entire information is already available in the assessment record and also this fact is already confirmed in the remand report. There is no fresh tangible material with the AO to form reasonable basis of escapement of income which is evident from the fact that the AO is in the reasons referred to return of income. Hence, it is clear that there is no fresh material available with the Ld. AO to re-open the assessment. Therefore, we are of the view that it is only change of opinion on the existing information. Accordingly, re-opening has to be quashed. The Ld. CIT(A) after considering relevant facts has rightly quashed the reopening of assessment. Hence, we are inclined to uphold order of the Ld. CIT(A) and dismiss revenue appeal. 10. In the result, the appeal filed by the Revenue is dismissed. Order ..... 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