TaxTMI 
TaxTMI 
2020 (1) TMI 691
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..... 4. The Ld. DR submitted that ITA No.283/NAG/2015 arising out of the regular assessment u/s.143(3) of the Income Tax Act, 1961 ( hereinafter referred to as "the Act‟) for assessment year 2009-10; ITA No.284/NAG/2015 arising out of the regular assessment u/s.143(3) of the Act for assessment year 2010-11 and ITA No.34/NAG/2015 arising out of regular assessment u/s.143(3) of the Act for the assessment year 2011-12 pertains to the issue on disallowance u/s.14A r.w.r 8D of the Income Tax Rules, 1962. The Ld. DR further submitted that ITA No.260/NAG/2015 is arising out of reassessment proceedings u/s.143(3) r.w.s.147 of the Act for assessment year 2009-10 pertains to the issue of determination of book profit u/s.115JB of the Act. First, we would take up Revenue‟s appeal in ITA No.34/NAG/2015, ITA No.283/NAG/2015 and ITA No.284/NAG/2015 for the assessment years 2011-12, 2009-10 & 2010-11 for adjudication which pertains to the issue of disallowance u/s.14A r.w.r.8D of the Income Tax Rules, 1962. ITA No.34/NAG/2015 (A.Y.2011-12) ITA No.283/NAG/2015 (A.Y.2009-10) ITA No.284/NAG/2015 (A.Y. 2010-11) 5. In order to adjudicate these appeals mentioned aforesaid, we ....
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....reversed and the issue was decided in favour of the Revenue. That further the said order being ex-parte, the assessee had filed an curative petition before the Hon‟ble Supreme Court and the Hon‟ble Supreme Court had recalled the ex-parte order to be now heard on merits and had directed for listing the said appeal. Thereafter, whether the Hon‟ble Supreme Court had heard the appeal or decided the appeal on merits is not coming out from the facts on record nor the Ld. DR was in a position to state the correct legal scenario. The Ld. DR vehemently contended that technically as on date, the matter stands in favour of the Revenue. However, it has to be ascertained whether after recalling the ex-parte order, the Hon‟ble Supreme Court had heard the appeal on merits or not or has passed any order that has to be considered since it will have the effect on all these appeals. More so, as evident from the aforesaid facts after decision of the Tribunal for assessment year 2008-09, lot of events has taken place and these events and the legal developments have to be ascertained before arriving at any decision. 8. In view of the above facts and circumstances and in our co....
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....f reassessment proceedings, the assessee objected to the said action of the Assessing Officer and submitted that since the original assessment has been completed u/s.143(3) of the Act and the same is sought to be reopened after 4 years from the end of the relevant year, the assessment cannot be reopened unless it is established that the alleged escapement of income was due to failure of the assessee to disclose fully and truly all the material facts necessary for assessment. The Assessing Officer however, did not agree with the submissions of the assessee and came to the conclusion that the disallowance u/s.14A read with rule 8D has to be considered while computing the income of the assessee u/s.115JB of the Act. 12. That on perusal of the order of the Ld. CIT(Appeals) at Para 3.3 of his order, we find that the Ld. CIT(Appeals) on perusal of the reasons recorded for reopening the assessment, has observed that there was no failure on the part of the assessee with regard to disclosing any material facts necessary for completion of assessment. Thus, reopening is beyond four years and there is no allegation in the reasons recorded that there is failure on the part of the assessee to....
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....y because there is change of opinion. 17. In the case of Cartini India Ltd. Vs. Addl. CIT & Anr. (2009) 314 ITR 275 ( Bom.), wherein the Court observed that what section 147 of the Act contemplates, is the existence of material on record on the basis of which a prima facie opinion could be formed by the Assessing Officer that any income chargeable to tax has escaped assessment and not the material on record on the basis of which a final decision has already been taken at the time of assessment under section 143(3) of the Act. The legislature has imbibed the expression "reason to believe" with reference to any income chargeable to tax which has escaped assessment. Therefore, it automatically follows that in order to take recourse to the provisions of Section 147, the Assessing Officer should have reason to believe that any income chargeable to tax has escaped assessment. The expression "reason to believe‟ imbibed in section 147, pre-supposes some objectivity of the Assessing Officer and not mere subjective satisfaction or any suspicion about the escapement of income. A mere suspicion of the Assessing Officer about the escapement of income cannot justify the action u/s.147 /....