In the instant case the Ld. A.O had passed the original assessment taking into consideration of all the documents and facts of the case and again he had reopened the case without bringing out any fresh material on record and thus there was a mere change of opinion, which is not justified.
FULL TEXT OF THE ITAT JUDGEMENT
The above captioned appeal filed at the instance of revenue pertaining to Assessment Year 2011-12 is directed against the order of Commissioner of Income Tax (Appeals)-II (in short ‘Ld.CIT’], Indore dated 16.09.2019 which is arising out of the order u/s 143(3) of the Income Tax Act 1961(In short the ‘Act’) dated 20.11.2017 framed by ACIT-5(1), Indore.
2. Revenue has raised following grounds of appeal :-
1. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) was justified in deleting the addition holding that it was change of opinion of the AOs, whereas it is evident from the record that it is matter of fact and wrong claim was made on the part of the assessee.
2. Whether on the facts and in the circumstances of the case, the Ld. CIT(A) was justified in ignoring the very fact that; the assessee is wrongly claiming depreciation @40% on loading van, whereas the assessee is not involved in business activities of tour and travel.
3. The appellant craves leave to add to or deduct from or otherwise amend the above grounds of appeal.
3. The brief facts of the case as culled out from the records are that return of income was filed by the asssessee declaring Rs.56,02,840/- after setting off the brought forward loss of Rs.6,78,170/-. Case selected for scrutiny and the assessment completed u/s 143(3) of the Act by assessing an amount of Rs.66,81,000/- against the return income of Rs.56,02,840/-disallowing the claim of unabsorbed depreciation @40% instead of 15% on the ground that higher rate of depreciation was claimed by the assessee because the company is engaged in the offset printing business. Accordingly a notice u/s 148 was issued to the assessee and in response the assessee furnished its return of income under protest. The assessee asked copy of reasons recorded u/s 147 and the same was provided by the Ld. A.O. The assessee objected the proceedings initiated u/s 147/148 which was rejected by the Ld. A.O. Aggrieved assessee preferred appeal before Ld. CIT(A) and succeeded. The Ld. CIT(A), relying upon judicial pronouncements, quashed the reassessment proceedings on the ground that the A.O had not brought on record any new fact or evidence for applying the Section 147 of the Act. Now the revenue is in appeal before the Tribunal.
4. Counsel for the assessee relied upon the order of Ld. CIT(A).
5. Departmental Counsel defended the order of Ld. A.O, however he could not controvert the findings of the Ld. CIT(A) by bringing any adverse material.
6. We have heard rival contentions and perused the records placed before us. We find that in the instant case the Ld. A.O had passed the original assessment taking into consideration of all the documents and facts of the case and again he had reopened the case without bringing out any fresh material on record and thus there was a mere change of opinion, which is not justified. Our view is supported by following judicial pronouncements;
(i) CIT V/s Kelvinator India Ltd 320 ITR 561.
(ii) ITO v/s Techspan India (P) Ltd (2018) 404 ITR 10(SC)
(iii) Asteroids Trading & Investment Pvt. Ltd V/s DCIT (2009) 308 ITR 190 (Bom).
(iv) CIT V/s Usha International Ltd 348 ITR 485 (Delhi (FB)
7. Considering the facts and circumstances of the case in the light of judicial pronouncements (supra) referred above and the fact that no adverse material was produced before us to controvert the finding of Ld. CIT(A), we uphold the order of Ld. CIT(A).
8. In the result Revenue’s appeal is dismissed.
The order pronounced in the open Court on 14.09.2020.