Dy. CIT v. Surat Urban Development Authority (SUDA)

Case Laws Analysis
REFERRED Gujarat State Board of School Textbooks v. Asstt. CIT 2016 TaxPub(DT) 4578 (Guj-HC)
REFERRED CIT v. Kelvinator of India Ltd. 2010 TaxPub(DT) 1335 (SC)
REFERRED Calcutta Discount Co. Ltd. v. Income Tax Officer & Anr. 1961 TaxPub(DT) 0130 (SC)

SUBSCRIBE FOR FULL CONTENT


The Tax Publishers2020 TaxPub(DT) 1474 (Ahd-Trib) IN THE ITAT, AHMEDABAD 'D' BENCH RAJPAL YADAV, J.M. & WASEEM AHMED, A.M. Dy. CIT v. Surat Urban Development Authority (SUDA) IT Appeal Nos. 2429 to 2431 (Ahd.) of 2017 A.Ys. 2009-10, 2010-11 and 2011-12 16 January, 2020 Appellant by: M.S.A. Khan Respondent by: Prateek Tosniwal ORDER *Rajpal Yadav, J.M.* Present three appeals are directed at the instance of the Revenue against separate orders of the learned Commissioner (Appeals)-9, Ahmedabad of even dated, i.e., 28-8-2017 passed for the assessment year 2009-10, 2010-11 and 2011-12. 2. In the first ground of appeal, Revenue has pleaded that the learned Commissioner (Appeals) has erred in holding that reopening of the assessment is bad in law. 3. With the assistance of the learned representatives, we have gone through the record carefully. It emerges out from the record that originally assessments have been framed under section 143(3) of the Act in the case of the respondents. The assessing officer thereafter recorded reasons, and reopened the assessments. He did not grant benefit of sections 11 and 12 and determined its taxable income. Dissatisfied with order of the assessing officer, the assessee carried the matter in appeal before the learned Commissioner (Appeals). The learned Commissioner (Appeals) has quashed the reassessments in all three years. Order of the learned Commissioner (Appeals) is verbatim same except variations of dates in all these three years. Therefore, for the facility of reference, we take note of findings recorded by the learned Commissioner (Appeals) in the assessment year 2009-10, which reads as under :-- '4.1 I have considered the facts of the case as well as the contention of the appellant. It is observed from the order of re-assessment, i.e., the impugned order that the appellant had filed the original return of income on 17-9-2009 declaring its income at Rs. NIL. The original assessment was finalized under section 143(3) of the Act determining total income at Rs. Nil. During the appellate proceedings the appellant has submitted further details with regard to original assessment proceedings. The appellant has submitted that the original assessment order under section 143(3) of the Act was passed on 24-11-2011. The appellant has further submitted that during the original assessment proceedings all the relevant details were provided to the assessing officer for verification. The appellant also produced the copy of reasons recorded dated 12-8-2015 for the reopening of the assessment proceedings. According to the appellant the assessing officer has not brought anything on record that the appellant had either withheld any information or had furnished incorrect information during the course of original assessment proceedings. Further the appellant has compared the original assessment order vis-a-vis the observations of the assessing officer in the impugned re-assessment order. According to the appellant in both the orders the activities of the appellant elaborated by the assessing officer are the same. I have gone through the reasons recorded for the re-opening of assessment proceedings as well as the original assessment order and the impugned re-assessment order. It is observed that during the original assessment proceedings the assessing officer has asked for various details including the important activities carried out by the appellant The appellant has submitted these details before the assessing officer along with complete books of accounts with bills and vouchers for verification. It is a matter of fact that the appellant has produced all the necessary required details before the assessing officer. On going through the reasons recorded for the reopening of assessment the assessing officer has also not mentioned anything adverse which has come to his notice or any new facts that has emerged in order to reopen the assessment proceedings. There is no new Information or fresh evidence in the possession of the assessing officer for re-opening of assessment proceedings. It is seen from the reasons recorded for re-opening of assessment the main reasons appears to be the change of opinion based on the same set of facts. It is presumed that during the original assessment proceedings the assessing officer had formed an opinion based on certain facts. However, while re-opening the reassessment proceedings the assessing officer seem to have changed the opinion based on the same set of facts and information. There are various case law such as CIT v. Kelvinator of India (2010) 320 ITR 561 (SC) : 2010 TaxPub(DT) 1335 (SC), Calcutta Discount Co. v. ITO (1961) 41 ITR 191 (SC) : 1961 TaxPub(DT) 0130 (SC), J.VA v. ITO 40 Taxmann.com (Guj-HC), Gujarat State Board of School Text Book v. ACIT, SCA No. 15715 of 2010, (Guj-HC) : 2016 TaxPub(DT) 4578 (Guj-HC) etc. with regard to reopening of assessment proceedings. In all these cases it has been held that based on change of opinion and in absence of any adverse tangible material the assessing officer cannot re-open the assessment proceedings. I agree with the contention of the appellant as well as place the reliance on these case law. When the similar set of facts and information was available and the assessing officer has passed an original assessment order based on those facts, if the assessing officer is again re-opening the assessment proceedings based on same set of facts and in absence of any adverse information in his possession then, the re-opening of assessment proceedings would be considered as a case of change of opinion. Therefore, in my opinion, the re-opening of assessment proceedings for assessment year 2009-10 is itself wrong, null and void ab initio. Therefore, the ground of appeal No. 1 is hereby allowed.' SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2020 TaxPub(DT) 1474 (Ahd-Trib)

IN THE ITAT, AHMEDABAD 'D' BENCH

RAJPAL YADAV, J.M. & WASEEM AHMED, A.M.

Dy. CIT v. Surat Urban Development Authority (SUDA)

IT Appeal Nos. 2429 to 2431 (Ahd.) of 2017

A.Ys. 2009-10, 2010-11 and 2011-12

16 January, 2020

Appellant by: M.S.A. Khan

Respondent by: Prateek Tosniwal

ORDER

Rajpal Yadav, J.M.

Present three appeals are directed at the instance of the Revenue against separate orders of the learned Commissioner (Appeals)-9, Ahmedabad of even dated, i.e., 28-8-2017 passed for the assessment year 2009-10, 2010-11 and 2011-12.

2. In the first ground of appeal, Revenue has pleaded that the learned Commissioner (Appeals) has erred in holding that reopening of the assessment is bad in law.

3. With the assistance of the learned representatives, we have gone through the record carefully. It emerges out from the record that originally assessments have been framed under section 143(3) of the Act in the case of the respondents. The assessing officer thereafter recorded reasons, and reopened the assessments. He did not grant benefit of sections 11 and 12 and determined its taxable income. Dissatisfied with order of the assessing officer, the assessee carried the matter in appeal before the learned Commissioner (Appeals). The learned Commissioner (Appeals) has quashed the reassessments in all three years. Order of the learned Commissioner (Appeals) is verbatim same except variations of dates in all these three years. Therefore, for the facility of reference, we take note of findings recorded by the learned Commissioner (Appeals) in the assessment year 2009-10, which reads as under :--

'4.1 I have considered the facts of the case as well as the contention of the appellant. It is observed from the order of re-assessment, i.e., the impugned order that the appellant had filed the original return of income on 17-9-2009 declaring its income at Rs. NIL. The original assessment was finalized under section 143(3) of the Act determining total income at Rs. Nil. During the appellate proceedings the appellant has submitted further details with regard to original assessment proceedings. The appellant has submitted that the original assessment order under section 143(3) of the Act was passed on 24-11-2011. The appellant has further submitted that during the original assessment proceedings all the relevant details were provided to the assessing officer for verification. The appellant also produced the copy of reasons recorded dated 12-8-2015 for the reopening of the assessment proceedings. According to the appellant the assessing officer has not brought anything on record that the appellant had either withheld any information or had furnished incorrect information during the course of original assessment proceedings. Further the appellant has compared the original assessment order vis-a-vis the observations of the assessing officer in the impugned re-assessment order. According to the appellant in both the orders the activities of the appellant elaborated by the assessing officer are the same.

I have gone through the reasons recorded for the re-opening of assessment proceedings as well as the original assessment order and the impugned re-assessment order. It is observed that during the original assessment proceedings the assessing officer has asked for various details including the important activities carried out by the appellant The appellant has submitted these details before the assessing officer along with complete books of accounts with bills and vouchers for verification. It is a matter of fact that the appellant has produced all the necessary required details before the assessing officer. On going through the reasons recorded for the reopening of assessment the assessing officer has also not mentioned anything adverse which has come to his notice or any new facts that has emerged in order to reopen the assessment proceedings. There is no new Information or fresh evidence in the possession of the assessing officer for re-opening of assessment proceedings. It is seen from the reasons recorded for re-opening of assessment the main reasons appears to be the change of opinion based on the same set of facts. It is presumed that during the original assessment proceedings the assessing officer had formed an opinion based on certain facts. However, while re-opening the reassessment proceedings the assessing officer seem to have changed the opinion based on the same set of facts and information. There are various case law such as CIT v. Kelvinator of India (2010) 320 ITR 561 (SC) : 2010 TaxPub(DT) 1335 (SC), Calcutta Discount Co. v. ITO (1961) 41 ITR 191 (SC) : 1961 TaxPub(DT) 0130 (SC), J.VA v. ITO 40 Taxmann.com (Guj-HC), Gujarat State Board of School Text Book v. ACIT, SCA No. 15715 of 2010, (Guj-HC) : 2016 TaxPub(DT) 4578 (Guj-HC) etc. with regard to reopening of assessment proceedings. In all these cases it has been held that based on change of opinion and in absence of any adverse tangible material the assessing officer cannot re-open the assessment proceedings. I agree with the contention of the appellant as well as place the reliance on these case law. When the similar set of facts and information was available and the assessing officer has passed an original assessment order based on those facts, if the assessing officer is again re-opening the assessment proceedings based on same set of facts and in absence of any adverse information in his possession then, the re-opening of assessment proceedings would be considered as a case of change of opinion. Therefore, in my opinion, the re-opening of assessment proceedings for assessment year 2009-10 is itself wrong, null and void ab initio. Therefore, the ground of appeal No. 1 is hereby allowed.'