TaxTMI 
TaxTMI 
2020 (4) TMI 782
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....already available on record at the time of original assessment and can be done only on the basis of availability of new material or information. 3. On the facts and in the circumstances of the case the learned CIT(A) erred in not appreciating that while completing the original assessment the relevant issue regarding the payment of Excise Duty on deemed export sales was never raised by a specific query/dealt by the Assessing Officer therefore no opinion was formed by the Assessing Officer on the relevant issue during original assessment proceedings and as such there was no "change of opinion" on the relevant issue while contemplating proceedings. 4. On the facts and in the circumstances of the case the learned CIT(A) erred in not following the ratio laid down by the decision of the Hon'ble Supreme Court in the case of A.L.A. firm Vs CIT, (1991) 55 Taxman 497 wherein the Hon'ble Apex Court has approved the view that the statute does not require that the information must be extraneous to the record but it is enough if the material, on the basis of which the reassessment proceedings are sought to be initiated, came to the notice of the Income-tax Officer subsequent to....
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....rom DGFT/Excise Authority and added the same to the returned income of the assessee. Against the said action of the Assessing Officer, the assessee carried the matter before the CIT(A). 5. The CIT(A), after considering the written submission filed by the assessee before him, deleted the said addition of Rs. 1,45,78,655/- made by the Assessing Officer u/s 43B of the Act and allowed the appeal in favour of the assessee. The contents of para 7 onwards of the order of the CIT(A) are relevant in this regard. 6. Aggrieved with the said decision of the CIT(A), the Revenue is in appeal before us with the above extracted grounds. 7. Grounds no.1 to 4 relate to the correctness of reopening of assessment. Referring to the said grounds, ld. Counsel for the assessee reiterated the submission as made before the CIT(A) and filed a written note in this regard before the Bench. For the sake of completeness, the said written note is extracted hereunder :- "Gr.No.1 to 5: Validity of notice u/s 148 of I.T. Act 1961. CIT(A) Para 5 Page 3 to 6 A) In case of assessee regular assessment has been framed u/s 143(3) on 30/12/2011 determining net loss at Rs. 5,89,62,760/....
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.... Act qua the 'reason to belief'. The CIT(A), as per discussion given in para 5 onwards quashed the validity of the reassessment proceedings and allowed the appeal of the assessee. The contents of para 5.5 and 5.8 of the order of the CIT(A) are relevant in this regard and the same are extracted hereunder :- "5.5 The above perspective was further reiterated in the case of Cartini India Ltd vs. Addl. CIT & Anr. (2009) 314 ITR 275 (Bom) where 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. Reopening of the assessment based on the very same materials to take a contrary view constitutes re-opening on account of change of opinion, which is not permissible under section 147 of the Act. ......... 5.8 In the present case, the information on which the re-opening is based was before the Assessing Officer at the ti....
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....extract the contents of para 8 and 9 of the order of the CIT(A) and the same are extracted hereunder :- "8. Interestingly the case of assessee for earlier Assessment Year 2008- 2009 was also reopened on the said issue of Cenvat Credit and payment u/s 43B. The appellant filed submissions before the ld. AO and after considering the same, the reassessment order U/s 143(3) r.w.s Section 147 was passed on 30.03.2014 in which the Cenvat Credit and excise duty payment issue was accepted and not added back to the income of the appellant. Thus this specific issue has already received the attention of the ld. AO in an earlier year and after giving due consideration to the submissions of the appellant, the proposed addition u/s 43B was not made even after reopening the assessment. 9. Thus the appellant has utilized the Cenvat credit for payment of excise duty and after making compliance of payment of excise duty, the assessee has made a claim from DGFT and in such facts it is erroneous to conclude that the assessee has used the Cenvat credit for claim of excise duty receivable from DGFT. From the submissions of the appellant and the above discussion, it is clear that the app....
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....n the asset side the same can in no manner of consideration be concluded as liable be assessed to tax at the hands of assessee. E) In Asstt. Year 2008-09 similar audit objection was raised which is placed in paper book at page 122 and 123. The regular assessment has been framed on 30/03/2014 u/s 143(3) r.w.s.147 wherein identical fact were considered and no addition was made in respect to amount receivable on account of excise duty receivable from DGFT (Director General of Foreign Trade). The facts are identical to that in Asstt. Year 2008-09 and assessment for Asstt. Year 2008-09 is framed within 3 days of issue of notice u/s 148 for the year under consideration. Assessment order is placed at page 120 to 122. F) In Asstt. Year 2010-11 identical facts are evident from tax audit report at pages 118 to 119. After considering the same assessment is framed u/s 143(3) on 14/12/2012 and order is placed in paper book at pages 116 to 117. No addition has been made for the amount receivable from DGFT. Such assessment has achieved finality. Similar facts exist for Asstt. Year 2011-12. (Pages 112 to 115). On identical facts no addition has been made in earlier and s....