9911796707
TMI Blog2023 (1) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... a change of opinion and was there any attempt to review the original order of assessment. There cannot be adjudication into the merits or roving enquiry into the merits of the assessment to come to a conclusion as to whether the reopening was justified or not. Prima facie, AO should be able to establish that the reopening of assessment was not on account of change of opinion, be it within four years or beyond four years. When a regular order of assessment was passed u/s 143(3) a presumption could be raised that such an order had been passed on application of mind and if it was to be held that an order, which had been passed purportedly without application of mind would itself confer jurisdiction upon the AO to reopen the proceeding without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. Appeal of the assessee is allowed. - SHRI KULDIP SINGH, JUDICIAL MEMBER AND AND SHRI GAGAN GOYAL, ACCOUNTANT MEMBER For the Appellant : Dr. K. Shivaram For the Respondent : Sh. Vranda U Matkari, Sr. DR ORDER PER GAGAN GOYAL, A.M: This appeal by assessee is directed against the order of Commissioner of Income Tax (Appeals)-47, Mumbai [for short CIT (A) ] dated 09.05.2022 under section 143(3) of the Income Tax Act, 1961 (for short the Act ) for A.Y. 2017-18. The assessee has raised the following grounds of appeal: 1. That on the facts and in the circumstance of the case, the Ld. Commissioner of Income Tax (Appeals) ('CIT(A)') erred in confirming the action of the Assessing Officer ('AO') in initiating the reassessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - vide assessment order dated 17-11-2009 u/s 143(3). Thereafter a notice u/s 148 was issued to reopen the case vide dated 26-03-2013 (after 4 years). 3. Reasons for reopening were supplied to the assessee which were duly objected by the assessee vide their letter dated 12-07-2013 was disposed on by the AO on 06-02-2014.During the reassessment proceedings AO added back mutual fund expenses as discussed in para-4 of the order amounting to Rs 23399000/- and registration fees as discussed in para-5 amounting to Rs 44, 68,000/-. Against this action of AO i.e., reopening of the matter and additions made assessee preferred an appeal before the Ld. CIT (A)-47 Mumbai. Ld. CIT (A) also sustained the action of the AO. Being further aggrieved assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Securities Exchange Board of India (SEBI) regulations. When the MF expenses exceed the limit specified by SEBI, in such cases the excess expenditure incurred by the schemes of Mutual Funds are to be borne by the Asset Management Company and/or Trustee Company (As per Regulation 52(7) of the SEBI Mutual Funds Regulations, 1996). Accordingly the excess expenditure of Rs. 25,999,333/- incurred during the year has been borne by both assessee company (Asset Management Company) and the Trustee Company as under: Expenses Borne by JM Financial Asset Management Pvt. Ltd. Rs. 23,399,400/- Expenses Borne by JM Financial Trustee Company Pvt Ltd. Rs. 2,599,933/- The portion of above expenses borne by the assessee company is termed as Mutual Fund Spill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a regular order of assessment was passed under section 143(3) of the Act, a presumption could be raised that such an order had been passed on application of mind and if it was to be held that an order, which had been passed purportedly without application of mind would itself confer jurisdiction upon the Assessing Officer to reopen the proceeding without anything further, the same would amount to giving premium to the Authority exercising quasi-judicial function to take benefit of his own wrong. If such is the position, in the absence of any allegation that there was any fresh material to come to a conclusion that income escaped assessment, the Assessing Officer cannot now take a stand that the claim made by the assessee under section 37 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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