TaxTMI 
TaxTMI 
2011 (3) TMI 619
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.... may be taken up first, because in the event of this additional ground of appeal being admitted, and being decided in favour of the assessee, all other grievances raised in the cross appeals will be rendered infructuous. We will, therefore, begin by taking up assessee's plea for admission of additional ground of appeal. 3. In the additional ground of appeal filed by the assessee, following grievance is raised: On the facts and in the circumstances of the case and in law, the learned Assessing Officer has legally erred in assuming jurisdiction under section 147 of the Income Tax Act, 1961. 4. It is submitted that the additional ground of appeal pertains to a purely legal ground and all the material facts, necessary fo....
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....gard to the rival submissions and having perused the material on record, we are inclined to admit the additional ground of appeal since, as assessee rightly contends, it is a pure question of law challenging the very assumption of jurisdiction to pass impugned order and merely because the assessee did not raise this grievance earlier the assessee cannot be prevented from raising this grievance now. In view of these facts, and in view if the law laid down by Hon'ble Supreme Court in NTPC's case (supra), we admit the additional ground of appeal and proceed to deal with the same. 6. The relevant material facts are like this. In this case, the original assessment under section 143(3) was completed on 29th March 2005. However, the assess....
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....terest is on account of delayed payment of acquisition cost of ongoing concern, it should have been treated as capital expenditure. As per the provisions of the Income Tax Act, the valuation of purchase of goods and sale of goods and inventory shall be inclusive of any tax, duty, cess actually paid by the assessee to bring the goods to the place of its location and condition as on the date of valuation. It is also seen from Annexure 13 to Tax Audit Report that the assessee company is following exclusive method of accounting for CENVAT/MOCVAT credit in the books of accounts and is also not considering for valuation of inventory. Further CENVAT credit unutilized is taken directly to balance sheet (asset side) under the head 'l....
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.... that, as evident from letter dated3rd March 2005, the Assessing Officer specifically requisitioned "nature and details of payment of management fees and interest" and required the assessee to furnish "copies of ledger account where these transactions are reflected". All these details were duly furnished by the assessee, and copy of the submission was also placed before us at pages 91 to 98 of the paperbook. The fact that these submissions were placed before the Assessing Officer, during the original assessment proceedings, showed that the Assessing Officer applied his mind to all the relevant facts and yet did not make the disallowance. All this, according to the learned counsel, shows that the reopening of assessment is merely on account ....
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....Officer has not considered these aspects of the matter, it is clear that opinion has not been formed and when opinion is not formed, there cannot be any question of a change of opinion. According to learned Departmental Representative, a change of opinion presupposes an opinion having been formed but no opinion is formed on the issues on which reassessment proceedings are initiated. As for the question of CENVAT and MODVAT adjustment in valuation, learned Departmental Representative fairly accepts that there may be no tax implications of the same, and that he cannot demonstrate any, but he hastens to add that this aspect of the matter is not relevant at the stage of reopening the assessment where all that is to be seen is whether or not pri....
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....r to reopen, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment". As regards the question of interest disallowance, all the relevant facts were before the Assessing Officer, specific issued were raised during the original assessment proceedings and the submissions made by the assessee placed on record, and yet the Assessing Officer decided not to make any disallowance. There were no new facts before the Assessing Officer which could justify the reopening. On these facts, it was nothing more than change of mind by the Assessing Officer, and a reopening of assessment on the basis of change of opinion, in view of Hon'ble Supreme Court's judgment in Kelvinator's case (supra), is no....