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TMI Blog2024 (2) TMI 1520X X X X Extracts X X X X X X X X Extracts X X X X ..... Premium Account and claimed as deduction in the computation of income. Treatment given by the petitioner against the Share Premium Account is a balance sheet item and not routed through the profit and loss account. Therefore, the petitioner made a claim in the computation of income while offering its income under the Income-tax Act. AO himself accepts in the reasons recorded that these items have not been charged to profit and loss account. We fail to understand that if these items are not charged to the profit and loss account then how can it be said that there is a double deduction. On a query being raised by this Court, the respondent has not justified the issue of the petitioner claiming double deduction of the same amount for which the reopening was sought. Therefore, even on this count the impugned proceedings are required to be quashed and set aside. The petitioner is justified in relying upon the decision of Aroni Commercials Limited [2014 (2) TMI 659 - BOMBAY HIGH COURT] wherein held that even in case of reopening within 4 years from end of the assessment year if the issue was examined in the course of the assessment proceedings then no reopening of assessment can be do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution. The assessee filed original return of income in October 2007 and subsequently revised return of income was filed in March 2009 declaring total income at rupees Nil to correct mistakes in the capital gains working, disallowance under section 14A, rectification for claim of set-off of unabsorbed losses and application under section 72A.The assessment for Assessment Year to 2007-08 was subsequently completed after scrutiny in December 2009 assessing total income at rupees Nil. It is seen from records that a scheme of amalgamation between Network Entertainment Ltd and In 2 Cable (India) Limited and Industry Media and Communications Ltd. was submitted before Honourable Bombay High Court which was approved by High Court vide order dated 09. 02. 2007 effective from 01.04.2006. As per scheme the transferee company shall utilise by way of adjustment a sum of Rs. 85 crores in the of the aggregate of the balance standing in the Securities Premium Account of the Transferee Company as on 31st March 2006 for utilising by way of adjustment of : a. Goodwill at Rs. 14 course b. Inventory-of Rs. 14 crore c. Receivable of Rs. 41 crore d. Advances at Rs. 15 crores e. Investmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the petitioner called upon the respondent to furnish audit scrutiny report on the basis of which the reopening proceedings were initiated. The petitioner also stated that the issue raised in the reasons recorded were examined during the course of the scrutiny proceedings and, therefore, the impugned proceedings are based on change of opinion which is not permissible. The petitioner also denied that there is any escapement of income on account of double deduction of the same amount. The petitioner specifically raised the objection that the date of recording the reasons has not been furnished and, therefore, it was submitted that the reasons have not been recorded prior to issue of notice. The petitioner prayed for dropping the proceedings. 7. On 17 January 2013, the respondent disposed of the objections by reproducing the reasons recorded and the objections filed by the petitioner. The only reasoning in the said order rejecting the objections is paragraph 6.7 which reads as under :- "6.7 The assessing officer, who has completed the assessment originally had discussed the disallowance claim for bad debts only to the extent of advances written off relatable only to "Related Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the reassessment proceedings are initiated within a period of 4 years and, therefore, the Officer is justified in issuing the impugned notice. He further submitted relying upon the reasons recorded that the reference to audit is with respect to the fact that there is a double deduction by the petitioner of the same amount and, therefore, there is escapement of income. He submitted that since the audit scrutiny is with respect to the facts and not on the law, the Officer was justified in initiating reassessment proceedings. He, therefore, prayed for dismissal of the petition. 11. We have heard the learned counsel for the petitioner and the respondent and have perused the documents annexed to the petition and affidavit in reply filed by the respondent. 12. It is by now settled position that even if the reassessment proceedings are initiated within a period of 4 years from the end of the relevant assessment year, reassessment proceedings cannot be initiated based on change of opinion since same would amount to review of the order which is not permissible under the Act. 13. In the instant case before us, the petitioner vide letter dated 7 December 2009 had filed its submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , any attempt thereafter to reopen the case on the very same material would amount to review of the order passed by the predecessor which is not permissible. The petitioner is justified in relying upon the decision of the Full Bench of Delhi High Court in the case of Commissioner of Income-tax Vs. Usha International Ltd. (2012) 25 taxmann.com 200 for this proposition. 16. In the reply of the respondent, it is stated that the letter dated 7 December 2009 does not contain any submissions on the issues which are sought to be reopen. We are afraid to accept this submission because on a perusal of letter dated 7 December 2009 the issues for which the reopening is sought were the subject matter of the submissions made by the petitioner and the same is self evident on a perusal of the same. Therefore, in our view, the reopening cannot be sustained on account of the fact that the issue was examined during the course of the assessment proceeding. 17. It is also important to note that in the objections to the reasons recorded, the petitioner had specifically raised a plea that there is no double deduction of the same amount. There is no rebuttal to this objection by assessing officer in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue does not dispute the fact stated by the assessee. In our view, the petitioner in its objections has stated that there is no double deduction of the same amount and therefore, the basis of reopening that there is a double deduction is factually incorrect. This factual averment raised by the petitioner in its objection has not been rebutted in the order rejecting the objections. Therefore, even on this count the decision relied upon by the petitioner in the case of Ankita Choksey (Supra) supports the case of the petitioner. 21. We may also note the following decisions wherein it is held that reopening is without jurisdiction if the grounds on which reopening is sought was subject matter of deliberation in the course of the assessment proceedings. i. Assistant Commissioner of Income-tax Vs Marico Ltd. 117 taxmann.com 244 (SC). ii. Marico Ltd. Vs Assistant Commissioner of Income-tax-12(3) (2) 111 taxmann.com 253 (Bombay). iii. Principal Commissioner of Income-tax Vs Century Textiles & Industries Ltd. (2018) 99 taxmann.com 206 (SC). iv. Principal Commissioner of Income-tax Vs Century Textiles & Industries Ltd. (2018) 99 taxmann.com 205 (Bom). v. Cliantha Resea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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