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TMI Blog2023 (2) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the considered opinion that there is no satisfaction of the proviso to section 147 and the AO was not entitled to reopen the assessment. Even otherwise, it is admitted that the basis of reopening the assessment for the assessment years 2010-11 and 2011-12, wherein, similar addition was made by AO which came to be deleted by the Tribunal vide order [ 2021 (10) TMI 1204 - ITAT PUNE] - It is also admitted fact that the decision of this Tribunal (supra) was not challenged by the Department before the Hon ble High Court. Thus, the issue had attained finality. Therefore, the very basis of the re-assessment proceedings does not stand, as once the foundation is removed, the superstructure falls (sublato fundmento credit opus). We a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid return of income, the assessment was completed vide order dated 31.12.2008 at total income of Rs.667,74,82,800/-. Subsequently, an order was passed u/s 154 of the Income Tax Act, 1961 ( the Act ) dated 30.09.2013 assessing at total income of Rs.678,02,72,050/-. Subsequently, the Assessing Officer formed an opinion that the income got escaped assessment to tax on the ground that wrong deduction u/s 36(1)(viia) was claimed in respect of the following three branches :- S.No. Name of the branch Population of the place as per Census 2001. District Average advances as on 31.03.2007 (Rs. In lacs) 10% of the average advance (Rs. In lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt assessment years i.e. A.Ys. 2010-11 and 2011-12 constitutes a tangible material enabling the Assessing Officer to form an opinion that the income escaped assessment to tax and, accordingly, issued notice u/s 148 on 29.03.2014. 6. In response to the said notice, the appellant bank filed a detailed submission stating that there was no income escaped assessment to tax. However, the appellant bank also filed return of income in response to the notice issued u/s 148 and the assessment was completed by the by the Dy. Commissioner of Income Tax, Circle-1(1), Pune ( the Assessing Officer ) vide order dated 23.03.2015 at a total income of Rs.690,96,44,704/- after making the addition of Rs.12,93,67,654/- on account of interest u/s 43D of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department had not preferred any appeal before the Hon ble High Court. Thus, the issue had attained the finality for the assessment years 2010-11 and 2011-12 in favour of the assessee. Therefore, the basis for reopening the assessment no longer survives. On merits, it is submitted that the issue sought to be reopened the assessment is no longer res integra as it is settled by the Hon ble Supreme Court in the case of CIT vs. Vasisth Chay Vyapar Ltd., 410 ITR 244 (SC), the Hon ble Bombay High Court in the case of CIT vs. Deogiri Nagari Sahakari Bank Ltd., 379 ITR 24 (Bombay), and the Co-ordinate Bench of this Tribunal in the case of DCIT vs. Western Maharashtra Development Corporation Ltd. in ITA No.899/PUN/2018 decided on 26.10.2021. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the assessee to disclose fully and truly all material facts necessary for the purpose of making the assessment for that assessment year. From the material on record, it is clearly indicated that the provision of NPA account was made in accordance with the direction of RBI. This claim was held to be tenable in the light of plethora of following judicial precedents :- (i) CIT vs. Vasisth Chay Vyapar Ltd., 410 ITR 244 (SC). (ii) CIT vs. Deogiri Nagari Sahakari Bank Ltd., 379 ITR 24 (Bombay). (iii) DCIT vs. Western Maharashtra Development Corporation Ltd. in ITA No.899/PUN/2018 decided on 26.10.2021 (Pune- Trib.). 12. Therefore, it is settled position of law that the primary duty of the assessee is only to disclose f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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