The Income Tax Appellate Tribunal Ahmedabab Bench ‘D’ by its common order dated 12.08.2011 dismissed two ITAs being ITA No. 3233 of 2005 & ITA No. 3235 of 2008 relating to the Assessment Years 2001-2002 and 2003-2004 respectively. The present appeal by the Revenue is directed against the said common order in so far as it corresponds to ITA No. 3235 of 2008 corresponding to Assessment Year 2003-2004. 1.1 The appellant has raised the following questions proposing it them as substantial questions of law :
“(A) Whether on the facts and circumstances of the case, the Hon'ble Tribunal has justified in holding that reopening of assessment u/s 147 was bad in law without appreciating that Explanation 2(c) (iv) of section 147 was applicable in this case ?
(B) Whether on the facts and circumstances of the case, the Hon'ble Tribunal has justified in holding that reopening of assessment in this case was mere change of opinion without appreciating the fact that in original assessment, interest expenses were excluded on proportionate basis for deduction u/s 80IA of the Act ?
(C) Whether on the facts and circumstances of the case, the Hon'ble Tribunal has justified in holding that original assessment order got merged with CIT (A)'s order dated 06.06.2008 without considering that the issues of exclusion of gross interest income and other income under different heads for deduction u/s 80IA were not discussed in the original assessment and therefore the same were not adjudicated by the CIT(A)?”
2. We heard Mr. Sudhir Mehta, learned advocate for the appellant- department.
3. The issue involved in the appeal is with regard to the exercise of powers for reopening the assessment under section 147 of the Income Tax At, 1961 (hereinafter referred to as 'the Act' for sake of brevity). The facts in the background are that the original assessment for the Assessment Year 2003-2004 was completed on 31.03.2005. The Assessing Officer allowed the claim for Rs. 52,57,000/-. The CIT(A) by his order dated 6.6.2008 allowed the appeal of the assessee.
3.1 For the year 2003-2004, the department preferred appeal being ITA No. 3235 of 2008 before the Income Tax Appellate Tribunal. As stated above, the said appeal as well as ITA No.3233 of 2008 in respect of Assessment Year 2001-2002 were considered together by the Tribunal and a common order was passed. As far as the appeal in respect of ITA No.3235 of 2008 for assessment year 2003-2004 is concerned in the common impugned order the following observation and findings were recorded by the Tribunal :
“In this case, also the original assessment framed on 31-03- 2005 where in besides other things; the AO did not allow the deduction u/s. 80IA of the IT Act on the amount claimed in the return of income. As against the claim of Rs.2,15,34,69/-, the AO allowed the claim of Rs.2,14,50,206/-. This was done by working the value of the net interest receipt of Rs.2,80,554/- as against the sum of Rs.1,29,38,808/- on which the assessee had claimed the deduction. The matter went up to the learned CIT(A) who vide order dated 20-12- 2005 upheld the stand of the AO. Subsequently, vide notice dated 31- 03-2006 the assessment was reopened u/s.147 of the IT Act and in the reassessment proceedings deduction u/s.80IA of the IT Act was withdrawn to the extent of Rs.52,57,700/- The assessee pleaded before the learned CIT(A) that reassessment is made on mere change of opinion by raising audit objection which is not permissible in law. The learned CIT(A) considered the issue and held that reassessment is done on mere change of opinion and accordingly assessment as is held in assessment year 2001-02 was annulled. Additions on merit were deleted.”
“ On consideration of the above facts, was we are of the view the facts are identical as has been consideration in assessment year 2001-02 in ITA No.3233/Ahd/2008 in which we have confirmed order of the learned CIT(A) in annulling the reassessment order. We find that the facts of the case are same as have been considered in earlier year. Even if, the learned CIT(A) has decided the appeal against the original assessment order against the assessment, the principle of merge still would apply to the facts of the case. By following the order for assessment year 2001-02, we dismiss this appeal of the revenue as well.”
(para 8 & 10 of the order)
4. In the common order, the Tribunal duly relied on decision of the Apex Court in CIT v/s Kelvinator of India Ltd. (320 ITR 561), a decision of this Court dated 08/03/2011 in United Phosporous Ltd. v/s additional CIT being Special Civil Application No. 3352 of 2001 and several other decisions, wherein the courts have enunciated the principles regarding exercise of powers under section 148 of the Act for reopening the concluded assessment.
4.1 The Tribunal rightly noted and relied on that in respect of previous assessment year 2001-2002, the identical issue was considered and it had dismissed the Department's appeal no. 3233 of 2008. By an oral judgment of even dated, we have dismissed tax appeal no. 130 of 2012 which arose out of ITA No. 3233 of 2008 holding that reopening in that case was based on mere change of opinion and therefore was impermissible in law.
5. In the order under consideration, it was not in dispute, as noticed above, that the facts, submissions and issues involved were all identical. In that view, the reasons recored in the oral judgment in Tax Appeal no. 130 of 2012 would apply and shall govern the present appeal also.
6. In the facts and circumstances, the findings and conclusion recorded by the Tribunal are proper and legal. The facts involved in the case are properly appreciated and the principles of law are correctly applied. The appeal does not raise any substantial question of law required to be considered by this Court. The appeal is devoid of merit.
7. The appeal is accordingly dismissed.
[V.M.SAHAI, J.] [N.V.ANJARIA, J.] cmjoshi