2021 (7) TMI 1003 - AT - Income Tax

Tribunal quashes assessment under section 147, deeming it a change of opinion.

Shri Rajnibhai Shivlal Modi, Prop. Of CASA Construction Versus The ITO, S.K. Ward-3, Himatnagar

The Tribunal quashed the assessment due to unjustified reopening under section 147 of the Income Tax Act, citing lack of new material and deeming it a ... Revision u/s 263 - Framing the assessment u/s. 143(3) - addition on account of RA Bill receipts - HELD THAT:- As perused the observation in the case of CIT vs. Nirma Corporation Ltd. [2008 (2) TMI 373 - GUJARAT HIGH COURT] held that wherein AO adopted one view, merely because commissioner took a different view of matter, it would not be sufficient to permit commissioner to exercise power u/s. 263 unless the view taken by the Assessing Officer is unsustainable in law. As demonstrated from the detailed submission made by the assessee in the form of revised return of income, reply in respect of notice u/s. 142(1) of the act and other correspondence made during the course of assessment proceedings as elaborated above in this order that no tangible material has come in possession of the AO after framing the assessment u/s. 143(3) - On the other hand, the reopening has been made merely on the basis of material available on record which has been considered by the Assessing Officer at the original assessment stage. After considering the judicial pronouncements referred by the ld. counsel and the material on record, we are of the view that reopening made in the case of the assessee in the absence of tangible material after framing assessment u/s. 143(3) of the Act is not justified as per law therefore we quash the assessment holding that the action of the AO of reopening was without jurisdiction.- Decided in favour of assessee. Issues:1. Reopening of assessment under section 147 of the Income Tax Act, 1961.2. Addition on account of RA Bill receipts.3. Levying of interest under section 234A/B/C of the Act.4. Initiating penalty under section 271(1)(c) of the Act.Analysis:1. Reopening of Assessment:The appeal challenged the reopening of the assessment under section 147 of the Income Tax Act. The Assessing Officer had reopened the case based on the non-disclosure of R.A. Bill amount in the total turnover. The assessee argued that the issue was already addressed during the original assessment under section 143(3) of the Act. The Tribunal observed that the reassessment was merely a change of opinion as the same facts were considered earlier. Citing legal precedents, the Tribunal held that the reassessment lacked tangible new material and was unjustified. Consequently, the assessment was quashed for being without jurisdiction.2. Addition on Account of RA Bill Receipts:The dispute centered on the addition of the full R.A. Bill amount to the total income of the assessee. The CIT(A) partially allowed the appeal, granting relief to the extent of the additional income disclosed by the assessee in the revised return. The Tribunal noted that the assessee voluntarily filed a revised return showing additional profit on the R.A. Bill. The Tribunal found that the original assessment had accepted the submission of the assessee, and the reopening was based on the same issue without new material. Consequently, the Tribunal quashed the reassessment, rendering further discussion on the addition unnecessary.3. Levying of Interest and Initiating Penalty:The appeal also contested the levying of interest under section 234A/B/C of the Act and the initiation of penalty under section 271(1)(c) of the Act. However, since the Tribunal quashed the reassessment on the grounds of lack of jurisdiction, it did not delve into the merits of these issues. As a result, the Tribunal allowed the appeal of the assessee without further adjudication on the interest and penalty aspects.In conclusion, the Tribunal's judgment primarily focused on the unjustified reopening of the assessment without new material, leading to the quashing of the assessment. The Tribunal's decision favored the assessee, allowing the appeal and setting aside the reassessment.