TaxTMI 
TaxTMI 
2021 (2) TMI 217
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....uly. Hence as per proviso to section 147, re-assessment is beyond the time and without jurisdiction inasmuch as the assessment under section 143(3) was completed on 19.12.2011 and notice under Section 148 was issued on 30.03.2016, beyond the period of four years from the end of the assessment year. 2.2. The Commissioner of Income tax (Appeals) ought to have appreciated that addition made in the reassessment has arisen only due to change of opinion and not on account of concealment of any particulars by the Appellant; hence the order is to be quashed as being without jurisdiction. CIT Vs.Kelvinator of India Ltd- 320 ITR 561 (SC). 2.3. The appellant relies on the decision of ITAT in Assessee's own case for the assessment year 2008-09 in ITA no-641/2018, wherein the ITAT has held that the reopening was invalid as there was no failure on part of the assessee to disclose fully and truly all material facts necessary for its assessment, 3. The Commissioner of Income tax (Appeals) erred in confirming the disallowance of deduction of additional wages paid to new workmen claimed u/s 8OJJAA amounting to Rs. 43,14,651/-, 3.1. The Commissioner of Inc....
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....e of opinion and has also cited the decision of ITAT, Chennai Bench in assessee's own case for the assessment year 2008-09. The ld.CIT(A) after considering the relevant submissions of the assessee had rejected legal ground taken by the assessee challenging reopening of assessment on the ground that there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment because mere production of books of account or other evidences cannot be held to have disclosed all material facts necessary for assessment. In this case, assessment had been reopened for excess claim of deduction u/s.80JJAA of the Act and the disclosure made by the assessee on this claim is not sufficient as observed by the AO. Therefore, he opined that the assessee's contention that the AO has failed to record the failure of the assessee to disclose fully and truly all material facts necessary for assessment is thus held to be incorrect and thus rejected. The CIT(A) has also rejected the alternative plea taken by the assessee on change of opinion in light of decision of the Hon'ble Supreme Court in the case of CIT vs. Kelvinator of India Ltd., supra on the ground that ....
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....e part of the appellant to disclose fully and truly all material facts necessary for the assessment. 5.3.5 The escapement of income in the instant case is on account of incorrect claim of deduction made by the appellant u/s 80JJAA of the Act pertaining to wages paid to new workmen employed during AY's 2007- 08, 2008-09 and 2009-l0.Since the deduction is allowable for employing only new workmen and also when such new workmen are employed for a period exceeding 300 days during the relevant assessment years, the crucial question that determines the eligibility of the appellant for the deduction is therefore, the correct disclosure of new workmen and the number of man days the new workmen completed during the relevant years under consideration. 5.3.6 The appellant, in the instant case, had claimed deduction for wages paid to 557 workmen pertaining to A Y 2009-10, whereas only 185 workmen were employed for more than 300 days. Thus, it can be seen that the deduction has been claimed in contravention to the relevant provisions of Section 8OJJAA of the Act. Claiming of excess deduction which the appellant is not entitled to, in my opinion, tantamounts to failure to disclo....
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....facts necessary for the assessment. The Delhi High Court in the case of Honda Siel Power Products Ltd., 340 ITR 53 also held that the explanation to seetionl47 stipulates that mere production of books of account or other evidence is not sufficient. Merely because material lies embedded in material or evidence, which the Assessing Officer could have uncovered but did not uncover, is not a good ground to deny or strike down a notice for assessment, Whether the Assessing Officer could have found the truth but he did not, does not preclude the Assessing Officer from exercising the power of reassessment to bring to tax the escaped income. The Kolkata High court in the case of ITO v. Electra Steel Castings Ltd, (2003) 264 ITR 410, 426, held that it cannot be accepted that there has been full and true disclosure of all material facts relating to the payment of the selling agency commission by mere disclosure of the selling agency agreement. The Kerala High court in the case of Alappat JeweIs, 30 taxrnann. corn 212, had also held that mere production of books of account etc. is not enough for escaping reassessment. The assessee has .a duty to brIng to the notice ....
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....t proceedings to what is on which assessment is sought to be reopened would form tangible materials and reasons to believe that income escaped assessment. The ITAT, Koikata in the case of Som Dutt Builders P. Ltd., 98 lTD 78 held that the change of opinion only comes to the rescue of the assessee where the Assessing Officer has taken one of the permissible views at the time of original proceedings and a wrong appreciation of law cannot be held as permissible view and that can always be changed for appreciating the law." 5.3.14 Relying on the above cited judicial precedents which are applicable to the facts of the appellant's case, the reopening of assessment u/s 147 is thus held to be valid as in the instant case also, no view whatsoever was expressed by the AO in the original assessment proceedings with regard to the issue sought to be reopened. 5.3.15 At this juncture, the AR of the appellant relied upon the decision of the jurisdictional Chennai Tribunal rendered in its own case for the AY 2008-09 in ITA No. 641/Chny/2018 wherein the Hon'ble Tribunal had held that reopening of the assessment was invalid on the ground that there was no failure on the pa....
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....41 to 645/Chny/2018 for the AY's20 10-11 and 2011-1 2had upheld the disallowance made by the AO on the said issue vide its order dated 09.05.2018 by relying on the decision of ITAT Delhi as cited above, Respectfully, following the binding judicial precedent of the ITAT in the appel1ants own case cited supra, the disallowance of excess claim of deduction u/s 80JJAA of the Act is thus upheld. 5. The ld.AR for the assessee at the time of hearing submitted that the ld.CIT(A) erred in upholding reopening of assessment u/s.147 of the Act, ignoring the fact that the assessment has been reopened beyond the period of 4 years from the end of the assessment year and the original assessment has been completed u/s.143(3) of the Act and in such case, the assessment cannot be reopened unless the AO alleged that there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for completion of assessment. In this regard, he relied upon decision of ITAT, Chennai Benches in assessee's own case for assessment year 2008-09 in ITA No.641/Chny/2018. 6. The ld.DR on the other hand strongly supporting order of ld.CIT(A) submitted that there is a failure on part....
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....se for assessment year 2008-09 in ITA No.641/Chny/2018, where the Tribunal after considering relevant facts had held that reopening of assessment without satisfying second condition is invalid and liable to be quashed. The relevant findings of the Tribunal are as under:- 15. The original assessment for this assessment year was completed u/s. 143(3) on 24.12.2010. Subsequently, this assessment was re-opened u/s. 148 on 21.04.2015, after four years from the end of the assessment year. The assessee objected to the assessment, however, overruling the same the AO completed the assessment u/s. 143(3) r.w. 147. While doing so, he disallowed the deduction claimed by the assessee u/s. 80JJAA. Aggrieved, the assessee filed an appeal before the CIT(A), challenging the re-opening of the assessment and also on merits. The CIT(A) dismissed the appeal. Aggrieved, the assessee filed this appeal. The assessee primarily challenged the re-opening of the assessment. 15.1 The AR submitted that the assessee sought the reason for reopening the assessment. He invited our attention to the copy of letter dated 21.04.2015 issued by the AO. The relevant portion is extracted as under....