ITA NO. 2154/DEL/2011
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "G", NEW DELHI
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
AND
SHRI O.P. KANT, ACCOUNTANT MEMBER
I.T.A. NO. 2154/DEL/2011
A.Y. : 2003-04
STEEL AUTHORITY OF INDIA DCIT, CIRCLE 9(1),
LTD., VS. NEW DELHI
GM (TAXATION) 4TH FLOOR,
ISPAT BHAVAN, LODI ROAD,
NEW DELHI
(PAN: AAACS70622F)
(APPELLANT) (RESPONDENT)
Assessee by : Shri MP Rastogi, Adv. &
Shri P.N. Shastri, Adv.
Department by : Sh. Sujit Kumar, Sr. DR
Date of Hearing : 18-08-2015
Date of Order : 10-09-2015
ORDER
PER H.S. SIDHU : JM
The Appeal filed by the Assessee emanate out of the Order
dated 23.2.2011 passed by the Ld. CIT(A)-XII, New Delhi relevant to
assessment year 2003-04.
2. The following grounds have been raised in the Assessee's
Appeal:-
"1. The CIT(A) has erred in confirming the reopening
of assessment u/s. 147 / 148 of the I.T. Act on
the basis of a change of opinion prompted on
the basis of audit objections.
1
ITA NO. 2154/DEL/2011
2. The CIT(A) has erred in confirming the addition
made by the AO by treating the Fiber Optic
Computer Networking as an ordinary asset
instead of being a part of the Computer
Systems and consequently disallowing Rs.
75.05 lacs of depreciation.
3. That the above grounds are independent and
without prejudice to each other.
4. That the appellant seeks leave to add, amend,
alter, abandon or substitute any of the above
grounds at the time of hearing of appeal.
3. The brief facts of the case are that Assessee filed return of
income on 13.11.2003 declaring total income at Rs. 6032 lakhs. The
assessment order u/s. 143(3) of the Income Tax Act, 1961 was
passed on 30.3.2006. Thereafter the case was reopened u/s. 148
on 6.7.2007 and in response to this notice assessee filed return of
income on 7.9.2007. The assessee also sought reason for
reopening on the same day. The reasons were supplied to the A.R.
of the assessee and also the objections filed by the assessee
against the reopening were disposed off on 22.10.2008. Notices u/s.
143(2) & 142(1) were issued and served upon the assessee and in
response thereof A.R. of the assessee company attended the
proceedings from time to time and filed the details, as sought by
the AO. Thereafter, the AO assessed the income u/s 143(3) of the
I.T. Act.
4. In this appeal, the assessee has mainly challenged the
reopening assessment u/s. 147/148 of the I.T. Act on the basis of a
change of opinion prompted on the basis of audit objections. Ld.
Counsel of the assessee at the threshold stated that the similar and
2
ITA NO. 2154/DEL/2011
identical issue has been decided by the ITAT in assessee own case
in the year 1981-82, 1987-88, 1988-89 & 1989-90 and requested
that the same may be followed in the present case and decide the
issue in dispute accordingly. Ld. Counsel for the assessee further
stated that notwithstanding the fact that the reassessment for the
year under consideration was initiated within 4 years from the end
of the relevant asstt. year, there is no change of opinion
nevertheless.
5. On the other hand, Ld. DR contended that the reopening in
question is valid, since it was done on the basis of an audit
objection.
6. We have heard both the counsel and perused the records.
After considering the position with regard to the issue of reopening,
we find that all the questions / reasons recorded by the AO are
covered by the ITAT earlier order dated 25.8.2003, in assessee's
own case for assessment year 1981-82. Like in that case, the
assessee had made full and true disclosure during the original
assessment proceedings with regard to these issues. We are of the
view that reopening had been done merely on change of opinion in
as much as that in the original assessment made u/s. 143(3) of the
I.T. Act, the AO had apparently applied his mind and had raised
queries with regard to the items which have been identified by the
AO in this notice u/s. 147/148 of the Income Tax Act. We also find
that AO has no fresh material to form his opinion regarding
escapement of assessment and he has also not found any tangible
3
ITA NO. 2154/DEL/2011
material to record the reasons for reopening of the assessment of
the assessee. It is merely a change of opinion which is not
permissible under the law as well as according to the various
decisions rendered by the Hon'ble Supreme Court of India in the
case of CIT vs. Kelvinator of India Limited in Appeal Nos. 2009-2011
of 2003 reported in 320 ITR 561 and Commissioner of Income Tax
vs. Usha International Ltd. [2012] 348 ITR 485 (Delhi) [Full Bench]
the reassessment is invalid on the part of the AO and also on
confirming the same on the part of the Ld. CIT(A).
6.1 In view of the aforesaid facts and circumstances, as explained
above and respectfully following the precedent in the assessee's
own case in the asstt. years 1981-82, 1987-88, 1988-89 & 1989-90
and also respectfully following the law laid down by the Hon'ble
Supreme Court of India and Full Bench of the Hon'ble High Court of
Delhi, we are of the view that both the authorities below have gone
wrong in deciding the reopening as valid. However, in view of the
aforesaid discussions and the precedents relied upon, as aforesaid
it is established that that in the present case the issue reopening of
assessment is incorrect and invalid. Therefore, we quash the orders
of the authorities below on this legal issue and decide the same in
favor of the assessee.
6.2 Since we have already quashed the reassessment proceedings
as aforesaid, raised in the Assessee's Appeal, in our considered
opinion, there is no need to adjudicate the issues on merits.
4
ITA NO. 2154/DEL/2011
7. In the result, the appeal filed by the Assessee stand allowed.
Order pronounced in the Open Court on 10/9/2015.
Sd/- Sd/-
[O.P. KANT] [H.S. SIDHU]
ACCOUNTANT MEMBER JUDICIAL MEMBER
Date 10/9/2015
"SRBHATNAGAR"
Copy forwarded to: -
1. Appellant -
2. Respondent -
3. CIT
4. CIT (A)
5. DR, ITAT TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
5
|
