2018 (1) TMI 328

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....Briefly stated facts of the case are that the assessee filed regular return of income on 30/11/2007 declaring total income of Rs. 12,14,30,611/-. Consequent to the search and seizure action under section 132 of the Income-tax Act, 1961 (in short 'the Act'), assessment under section 153A/143(3) of the Act was completed on 26/12/2009 assessing total income at Rs. 14,16,64,407/-. In the assessment order, the Assessing Officer made one of the disallowance amounting to Rs. 97,15,872/-for bogus sub-arranger fee against following parties: M/s. Shevin Capital Private Limited Rs.22,78,472 M/s. Rishi Automation Rs. 8,41,800 M/s. Singhal Galvanizing Industries Rs.31,42,700 M/s. Vishal Metal Castings Private Ltd. Rs.28,06,000 M/s. Ashika Capital Rs. 84,100 M/s. Karni Projects Private Limited Rs. 2,81,400 M/s. Raj Nikita Builders Private Ltd. Rs. 2,81,400 Total Rs.97,15,872   3. On further appeal by the assessee, the Commissioner of Income Tax (appeals)-I, New Delhi, allowed the appeal of the assessee and deleted the additions including the addition for bogus sub arranger fee. 4. Subsequent to that, case of the assessee was reopened under section 147 of the Act a....

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....s of the assessee and sub-arranger fee received recorded in the books of accounts of M/s Maruti Papers Ltd. The assessee further submitted that in the year under consideration, also the assessment has been reopened on identical grounds. The learned CIT-(A) following his finding for the assessment year 2006-07, held the reassessment under section 147 of the Act as invalid. The relevant finding of the learned CIT-(A) on the validity of the reassessment is reproduced as under: ".................................................................................... Since in the year under consideration also the same facts are there are same submissions have been made as were made during the appellate proceedings for assessment year 2006-07 therefore, relying on my order dated 11.06.2014 for assessment year 2006-07, I hold that in the year under consideration also the reasons recorded are bad in law and based on "change of opinion" and there is nothing on record to suggest that reopening under section 147 of the Act is valid. In the absence of all these, in my humble view the reopening under section 147 of the Act cannot be sustained." 5. Before us, the Ld. CIT(DR) supporting the ground....

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.... to the reasons recorded for the assessment year 2006-07. Accordingly, he submitted that appeal of the Revenue might be dismissed. 7. We have heard the rival submission and perused the relevant material on record. The Revenue in its grounds has challenged that the assessment was reopened on the basis of independent information in the form of enquiry report of Investigation Wing suggesting the payment to M/s. Maruti Papers Ltd. was bogus. We have perused the copy of reasons recorded by the Assessing Officer, available in the paper book filed by the assessee at page 186 to 187. For the purpose of clarity, the said reasons recorded by the Assessing Officer are reproduced as under: "In this case assessment u/s 153A/143(3) of I.T. Act, 1961 was completed on 26.12.2009 at an total income of Rs. 14,16,64,407/- as against returned income of Rs. 12,14,30,611/- filed on 13.11.2007. The assessee company M/s. A.K. Capital Serviced Ltd. has debited a sum of Rs. 7,21,42,282/- on account of Sub- arrangers fees/commission in his books of account for the period 01.04.2006 to 31.03.2007 relevant to the A.Y. 2007-08 out of which a sum of Rs. 68,99,954/- relates to M/s. Maruti Papers Ltd. whereas....

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....tax and therefore, said party has not shown amount of service tax in the profit & loss account. The Ld. counsel drawn our attention to page 52 to 68 of the paper book and submitted that all information in respect of sub-arranger fee, including the fee paid to M/s Maruti Papers Ltd. was already submitted before the Assessing Officer in proceedings under section 153A/143(3) of the Act and no adverse inference was drawn in respect of M/s Maruti Papers Ltd. The Ld. CIT(DR) could not controvert this fact that said information was already available with the Assessing Officer. In our opinion, when the information was already available before the Assessing Officer in respect of arranger fee paid to M/s Maruti Papers Ltd., reopening the assessment on the basis of the same information certainly amount to change of opinion. We may like to emphasize here that in the reasons recorded there is no mention of any additional information received in respect of M/s Maruti Paper Ltd. The decisions relied upon by the learned CIT(DR) are not relevant in the facts of the instant case. 8.1 In identical set of circumstances, the Tribunal (supra) in assessment year 2006-07 has already held the reassessment....