2020 (7) TMI 571

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....or the Assessment Year 2009-10. 2. The appeal has been filed raising the following Substantial Questions of Law: "(i) Whether on the facts and in the circumstances of the case and in law, the ITAT was correct in cancelling the re-opening of assessment on the basis of audit objection as bad in law, when the objection communicated was an information to the AO? (ii) Whether on the facts and in the circumstances of the case and in law, the ITAT was correct in cancelling the re-opening of assessment without considering the income escapement by way of cancellation of forward contracts which is speculated in foreign currency by the assessee and the same was claimed as business loss on forward contract?" 3. We have heard Mr.....

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....nue/appellant would submit that the case of the assessee is one of where an audit objection was raised and therefore the case would fall within the ambit of the exceptions in the CBDT circular and therefore, the revenue is entitled to pursue the appeal on merits. 8. In our considered view the appeal can be taken up and considered on merits and examined as to whether reopening of the assessment was justified. 9. The CIT(A), while allowing the appeal filed by the assessee called for the records of the Assessing Officer for verification of the factual aspects, because the assessee stated that the Assessing Officer did not have reason to believe that the assessment has to be reopened, since, the Assessing Officer objected to the report su....

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....eported in (1998) 230 ITR 70 (Mad) and CIT Vs. Rajalakshmi Textile Processors Limited, reported in (1999) 35 ITR 718. 13. Further, the CIT(A) has also referred to a decision of the High Court of Gujarat in the case of Jagat Jayantilal Parikh Vs. Deputy Commissioner of Income Tax, reported in (2013) 355 ITR 400, wherein the facts are almost identical to that of the case of the assessee. In the said decision, Gujarat High Court has held the reopening as invalid as the Assessing Officer did not form an independent opinion that he had reason to believe that the assessment has to be reopened. 14. The tribunal, at the instance of the revenue tested the order passed by the CIT(A) for its correctness and aAfter taking note of the entire factu....