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TMI Blog2022 (8) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosed all the material facts leading to escapement of income. In fact, the assessee has disclosed all the material facts in respect of increase in the authorised capital in the balance sheet and claimed on account of 1/5th preliminary expenses u/s 35D of the Act. Under these facts and circumstances, we find force in the contentions of the A.R. that the reopening was made in violation to provisions as contained in first proviso to section 147 of the Act which stipulates that reopening cannot be made where the assessment was framed u/s 143(3) of the Act after a period of four years from the end of relevant assessment year if the escapement of income has occurred due to non-disclosure of material facts by the assessee which ultimately led t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Member:- This appeal preferred by the Revenue is directed against the order of ld. Commissioner of Income Tax (Appeals)-7, Kolkata dated 01.05.2019 for the assessment year 2008-09, wherein the Revenue has raised the following grounds:- (1) Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in nullifying the assessment done u/s 147 of the Income Tax Act,1961. (2) Whether on the facts and in the circumstances of the case, the ld. CIT(A) has erred in deleting the addition made by the AO by disallowing of preliminary expenses of Rs.31,72,758/- . 2. Though the Registry has pointed out that the appeal is time barred, however, in view of the decision of the Hon ble Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iture suo motto in the computation of income at the time of filing the return of income and accordingly the income has escaped as failure on the part of the assessee to disclose truly and fully all material facts. Accordingly notice under section 148 of the Act dated 18.03.2014 was issued by the ld. Assessing Officer apparently after a period of four years from the end of relevant assessment year in terms of proviso to sect ion 147 of the Act on the ground that income of the assessee has escaped assessment as stated hereinabove. Finally the ld. Assessing Off icer framed the assessment disallowing and adding back of Rs.30,31,447/- being 20% of share issue expenses and Rs.1,41,310/- being 20% of preliminary expenses relating to ROC fee paid f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o reopen the assessments, there appears to be a case of mere change of opinion. In such cases, reopening proceedings are not valid. The principles enunciated in Kalyanji Mavji s case 102 ITR 287 cannot save the impugned action of the A.O . In the case of Mercury Travels Ltd. vs. Dy. CIT 258 ITR 533 (Cal.), it was held as follows - that where the primary facts were before the A.O. when he made assessments under sub-section (3) of section 143 and it was not open to him to invoke the provisions of section 147 of the said Act to reopen the assessments because he might have omitted to notice certain facia by overnight, For change of opinion, the provision of section 147 of the said Act cannot be put to service , In the case of Jindal Photo Film ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessment year. We observe from the reasons recorded by the AO u/s 148(2) of the Act that reopening was made on the ground that authorised share capital as per Schedule 1 of the Balance-sheet has increased from Rs.1.64 crores to Rs.4.98 crores and the assessee has claimed an amount of Rs.31,72,758/- under section 35D on account of preliminary expenses in Schedule 12D. According to the ld. Assessing Officer, the assessee has not disallowed this expenditure in the computation of income and accordingly the income has escaped due to failure on the part of the assessee to disclose truly and fully all material facts. We note from the reasons recorded that all the information were duly disclosed in the books of account, audited financial statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Haldia Petrochemicals Ltd. vs. ACIT in ITA no. 2455/Kol/2019 for AY 2008-09 dated 24.03.2021 which has been passed by following the decision of co-ordinate bench in the case of Beekay Steel Industries Ltd. vs. DCIT in ITA No. 105/Kol/2015 dated 31.05.2017. We note that the co-ordinate bench in the case of Beekay Steel Industries Ltd.(supra) has followed the decisions of various High Courts deciding the similar issue. The Hon ble Bombay High Court in the case of Tao Publishing (P) Ltd. v. Dy.CIT reported in (2015) 370 ITR 135 (Bom.), Sound Casting Pvt. Ltd. vs. DCIT in 250 CTR 119 (Bom), Hon ble Delhi High Court in the case of CIT vs. Orient Craft Ltd. reported in (2013) 354 ITR 356 (Del) and in the case of Haryana Acrylic Manufacturing C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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