M/s Sidharth Tubes Ltd.,, v. The DCIT, 4(1),

CO 52/IND/2006 | 1997-1998
Pronouncement Date: 02-02-2010 | Result: Dismissed

Appeal Details

RSA Number 5222723 RSA 2006
Assessee PAN AAECS3300C
Bench Indore
Appeal Number CO 52/IND/2006
Duration Of Justice 3 year(s) 9 month(s) 14 day(s)
Appellant M/s Sidharth Tubes Ltd.,,
Respondent The DCIT, 4(1),
Appeal Type Cross Objection
Pronouncement Date 02-02-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 02-02-2010
Date Of Final Hearing 15-01-2010
Next Hearing Date 15-01-2010
Assessment Year 1997-1998
Appeal Filed On 18-04-2006
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH AND SHRI V.K. GUPTA AM ITA NO.111/IND/2006 ASSESSMENT YEAR: 1997-98 DY. COMMISSIONER OF INCOME TAX 4(1) INDORE APPELLANT VS M/S. SIDHARTH TUBES LTD. 13-14 JAWAHAR MARG INDORE PAN AAECS 3300 C RESPONDENT AND CO NO.52/IND/2006 (ARISING OUT OF ITA NO.111/IND/2006) ASSESSMENT YEAR: 1997-98 M/S. SIDHARTH TUBES LTD. 13-14 JAWAHAR MARG INDORE PAN AAECS 3300 C APPELLANT VS DY. COMMISSIONER OF INCOME TAX 4(1) INDORE RESPONDENT DEPARTMENT BY SHRI K.K. SINGH CIT DR & SMT. APARN A KARAN SR. DR ASSESSEE BY SHRI PRAKASH JAIN CA O R D E R PER JOGINDER SINGH JM THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY T HE ASSESSEE ARE DIRECTED AGAINST ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II INDORE DATED 2 29 TH DECEMBER 2005 FOR THE ASSESSMENT YEAR 1997-98. TH E REVENUE HAS RAISED THE FOLLOWING GROUND IN ITS APPEAL:- (I) IN ANNULLING THE ASSESSMENT ORDER HOLDING THAT THERE WAS NO COGENT BASIS FOR ASSUMING JURISDICTION U/S 147 BY THE A.O. 2. DURING HEARINGS WE HAVE HEARD SHRI K.K. SINGH LD. CIT DR ALONG WITH SMT. APARNA KARAN LD. SR. DR FOR THE REVENUE AND SHRI P RAKASH JAIN LD. COUNSEL FOR THE ASSESSEE. THE LD. DEPARTMENTAL REPRESENTATI VE WHILE ASSAILING THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) REFERRED TO THE REASON RECORDED FOR THE REOPENING OF ASSESSMENT AND ARGUED THAT ASSESSING OFFICER WAS COMPETENT TO ISSUE NOTICE U/S 148 OF THE I.T. A CT. IN SUPPORT OF THEIR CONTENTION THE LD. DRS PLACED RELIANCE UPON THE FO LLOWING DECISIONS; (I) THE HONBLE SUPREME COURT IN THE CASE OF INDO-A DEN SALT MFG & TRADING CO. P. LTD VS CIT (1986) 159 ITR 624 HELD T HAT FAILURE TO DISCLOSE FULLY AND TRULY MATERIAL FACTS WHICH COULD HAVE BEEN FOUND BY ITO BY FURTHER PROBING. IT WAS CONTENDED BY THE LD. DR THAT THE ASSESSEE HAS NOT DISCHARGED IT ONUS. (II) THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. MISS EATHER P. CARUVALHO (1999) 237 ITR 549 WHEREIN THE ASSESSEE OWNING LANDS TRANSFERRING THEM AS CAPITAL IN A FIRM IN WHICH THEY WERE PARTNERS TRANSFER RESULTING IN CAPITAL GAINS. TRANSFER NOT DISCLOSED IN RETURN OR AT THE TIME OF ASSESSMENT REASSESSMENT VALID. (III) THE HONBLE SUPREME COURT IN THE CASE OF SRI KRISH NA PVT. LTD. ETC. VS. ITO (1996) 221 ITR 538 WHEREIN THE REASSESSMENT PROCEEDINGS WERE HELD TO BE VALIDLY INITIATED WITHOUT DISCLOSU RE OF LOANS WHICH WERE SUBSEQUENTLY DISCOVERED TO BE FALSE. (IV) THE HONBLE SUPREME COURT IN THE CASE PHOOL CH AND BAJRANG LAL VS. ITO (1993) 203 ITR 456 IN WHICH REASSESSMENT WA S HELD TO BE 3 VALID ON SUBSEQUENT INFORMATION FROM ASSESSING COMP ANY THAT ITS MANAGING DIRECTOR HAD CONFESSED THAT COMPANY HAD NO T ADVANCED ANY LOAN TO ANY PERSON DURING PERIOD COVERING DATE OF CASH LOAN. SUBSEQUENT INFORMATION DEFINITE SPECIFIC AND RELIA BLE. (V) THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF GIRILAL & COMPANY VS. S.L. MEENA ITO (2008) 300 ITR 432 IN WHICH THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 80IB BUT NO SPECIFI CATION WAS GIVEN IN THE RETURN WITH REGARD TO SIZE OF THE LAND WHICH WAS A CONDITION PRECEDENT FOR CLAIMING SPECIAL DEDUCTION. REASSESSMENT AFTER FOUR YEARS WAS HELD TO BE VALID. 2.1 ON THE OTHER HAND THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND S UBMITTED THAT THE PROCEEDINGS UNDER SECTION 148 HAVE BEEN INITIATED A FTER FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. IT WAS CLAIME D THAT THE ASSESSEE DECLARED ALL THE FACTS IN THE RETURN OF INCOME AS W ELL AS AT TIME OF ORIGINAL ASSESSMENT PROCEEDINGS THEREFORE THERE IS NO FAIL URE ON THE PART OF THE ASSESSEE TO DISCLOSE ALL PRIMARY FACTS. HE SUBMITT ED THAT THE ORIGINAL RETURN FOR THE ASSESSMENT YEAR IN QUESTION WAS FILED ON 1. 12.1997 AND THE REGULAR ASSESSMENT WAS COMPLETED U/S 143(3) ON 31.3.2000 BY JCIT SPECIAL RANGE- 2 INDORE. A SEARCH U/S 132 WAS CONDUCTED AT THE B USINESS PREMISES OF THE COMPANY AND SO ALSO THE RESIDENTIAL PREMISES OF THE DIRECTORS OF THE COMPANY AND THEIR OTHER FAMILY MEMBERS ON 8.10.2003. NOTHI NG SPECIFICALLY RELATED TO THE APPELLANT COMPANY WAS FOUND BY THE SEARCH PARTY PARTICULARLY FOR THE ASSESSMENT YEAR IN CONSIDERATION BUT EVEN THEN THE AO ISSUED NOTICE U/S 148 ON THE BASIS OF SUSPICION GOSSIP RUMOUR ON VAGUE AND IRRELEVANT MATERIALS. IT WAS PLEADED THAT FROM THE READING OF REASON RECO RDED IT IS CLEAR THAT THOSE 4 ARE BASED ON CONJECTURE AND SURMISES WITHOUT ADVERT ENCE TO THE CORRECT FACTS AND LAW. 2.2 IT WAS FURTHER SUBMITTED THAT PROVISO TO SECTIO N 147 CLEARLY STATES THAT WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR NO ACTION SH ALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAP ED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PAR T OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTI CE ISSUED UNDER SUB-SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FU LLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT Y EAR. THE LD. COUNSEL FOR THE ASSESSEE FURTHER REFERRED T O SECTION 149 (1) OF THE I.T. ACT WHICH READS AS UNDER; 149(1). NO NOTICE UNDER SECTION 148 SHALL BE ISSUED FOR THE RELEVANT ASSESSMENT YEAR :- (A) IF FOUR YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE CASE FALLS UNDER CLAUSE (B); (B) IF FOUR YEARS BUT NOT MORE THAN SIX YEARS HAV E ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE INCO ME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AMOU NTS TO OR IS LIKELY TO AMOUNT TO ONE LAKH RUPEES OR MORE FOR THAT YEAR. 3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. R EPRESENTATIVES OF BOTH SIDES CONSIDERED THE CASES RELIED UPON BY THEM AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. BRIEFLY THE FACTS OF THE CASE ARE THAT T HE ORIGINAL ASSESSMENT OF THE ASSESSEE COMPANY FOR THE ASSESSMENT YEAR 1997-98 WA S COMPLETED U/S 143(3) BY THE JCIT SPECIAL RANGE-2 INDORE ON 31/0 3/2000. A SEARCH WAS CARRIED OUT BY THE DEPARTMENT AT THE BUSINESS PREMI SES OF THE ASSESSEE 5 COMPANY ON 08/10/2003 AND CONSEQUENT THERE TO THE C ASE WAS REOPENED U/S 147. A NOTICE U/S 148 DATED 26/03/2004 WAS ISSUED W HICH WAS SERVED UPON THE ASSESSEE ON 27/03/2004. REASSESSMENT PROCEEDING WAS COMPLETED U/S 143(3) / 147 ON 21/10/2005 ON THE INCOME OF RS.2 89 41 707/-. IN THE REASSESSMENT PROCEEDING ONLY ADDITION OF RS.94 430/ - WAS MADE OUT OF FOREIGN TRAVELING. APART FROM IT NO OTHER ADDITION WAS MADE IN THE ORIGINALLY ASSESSED INCOME U/S 143(3) OF THE ACT. 4 AGGRIEVED BY THE REOPENING OF ASSESSMENT ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO AFTER CONSIDERING THE FAC TS AND SUBMISSIONS OF THE ASSESSEE ANNULLED THE REASSESSMENT ORDER. HIS FIND INGS ARE REPRODUCED BELOW:- I HAVE CAREFULLY CONSIDERED THE ABOVE FACTS AND F IND SUFFICIENT FORCE IN THE CONTENTION OF THE APPELLANT . IT IS NOTICED FROM THE RECORDED REASONS THAT THEY ARE VAG UE AND NON SPECIFIC HAVING NO CORRELATION WITH THE ULT IMATE ADDITION MADE. THE FACT REMAINS THAT THE ORIGINAL ASSESSMENT ORDER WAS PASSED AFTER THROUGH SCRUTINY OF THE CASE AND VARIOUS ADDITIONS DISALLOWANCES MADE WERE DULY ADJUDICATED BY MY LEARNED PREDECESSORS WH O HAS DELETED MOST OF THE ADDITIONS BARRING A FEW. EV EN THE AO HAS CONCEDED THIS FACT IN THE BODY OF THE ORDER THAT THE ORIGINAL ASSESSMENT ORDER WAS PASSED AFTER INTE NSIVE SCRUTINY AND INVESTIGATION. FURTHER IT IS RATHER SURPRISING TO NOTE THAT THE AO IN THE REASSESSMENT ORDER HAS REPEATED THE SAME ADDITI ONS WHICH WHICH HAVE ALREADY BEEN DECIDED AT THE FIRST APPELLATE STAGE. HE HAS NOT APPRECIATED THAT THE OR IGINAL ORDER GOT MERGED IN THE SUBSEQUENT ORDERS PASSED CONSEQUENT TO GIVING EFFECT TO THE APPELLATE ORDER. THE 6 ACTION TAKEN U/S 147 AND THE ADDITIONS MADE THEREF ORE SUFFER FROM SEVERAL GLARING ANOMALIES AND INCONSIST ENCIES NO ADDITION HAS BEEN MADE WITH REGARD TO THE REASONS RECORDED AND MADE THE BASIS FOR REOPENING T HE CASE. APPARENTLY THE HAVE NO NEXUS WITH THE FINAL END PRODUCT. NOTHING HAS BEEN BROUGHT ON RECORD TO JUST IFY THE REOPENING SO AS TO SHOW THAT THERE WAS OMISSION ON THE PART OF THE APPELLANT TO DISCLOSE ALL THE MATER IAL FACTS. A HOST OF DECISIONS OF VARIOUS COURTS OF LAW HAVE L AID DOWN A SETTLED PROPOSITION THAT REOPENING OF AN ASSESSMENT MADE U/S 143(3) OF THE ACT AFTER FOUR YE ARS CANNOT BE MADE IN A LIGHT HEARTED MANNER AS DONE I N THE PRESENT CASE. IT APPEARS THAT THE CASE HAS BEEN REOPENED MAINLY ON THE GROUND THAT SEARCH AND SEIZU RE OPERATION TOOK PLACE IN THE CASE OF THE APPELLANT A ND ITS RELATED CONCERNS INCLUDING DIRECTORS ETC. HOWEVER THIS FACT ALONE CANNOT BE DECISIVE IN TAKING SUCH AN ACT ION UNLESS AND UNTIL THE MATERIALS GATHERED AS A RESULT OF ALL MATERIAL FACTS IN THE RETURN FILED ORIGINALLY. NO DOUBT THE AMENDED PROVISIONS OF SECTION 147 G IVE WIDE POWERS TO THE AO IN THE MATTER OF REASSESSMENT BUT THE EXPRESSION REASONS TO BELIEVE COULD NOT BE INTERPRETED TO MEAN REASONS TO SUSPECT. IN ABSENC E OF ANY FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NO REOPENING COULD BE MADE AFTER YEARS. THE RECORDED REASONS MUST BRING OUT TH E FAILURE ON THE PART OF THE ASSESSEE FOR INVOKING SU CH PROVISIONS. IN THIS CASE THE REASONS RECORDED MERE LY CONCLUDE THAT THERE WAS ESCAPEMENT OF INCOME BUT TH ERE IS NOT EVEN A WHISPER OF AN ALLEGATION THAT SUCH ESCAPEMENT HAD OCCURRED ON ACCOUNT OF THE FAILURE O F THE APPELLANT TO DISCLOSE ALL FACTS NECESSARY FOR ASSES SMENT. 7 APART FROM THE DECISIONS RELIED UPON BY THE APPEL LANT THERE ARE PLETHORA OF OTHER DECISIONS OF VARIOUS CO URTS OF LAW WHERE THE ABOVE PROPOSITION HAS BEEN LAID DOWN. REFERENCE CAN BE MADE TO SOME OF THE RECENT DECISIO NS IN THE CASES OF GRINDWELL NORTON LTD. VS ACIT (2004 ) 267 ITR 673 (BOM.) HINDUSTAN LEVER LTD. VS R.B. WADKAR (2004) 268 ITR 339 (BOM) BANSWARA SYNTEX LTD. VS ACIT (2004) 138 TAXMAN 275 (RAJ.) DULI CHAND SINGHANIA VS ACIT (2004) 269 ITR 192 (P&H) BISHWANATH TEA CO. LTD. VS. DCIT (2004) 267 ITR 687 (CAL.) DENISH INDUSTRIES LTD. VS. ITO (2004) 271 I TR 340 (GUJ.) AND MAHAVIR SPINNING MILLS LTD. VS. CIT (200 4) 270 ITR 290 (P&H) ETC. IN THE LIGHT OF ABOVE FACTS AND POSITION OF LAW IT IS HELD THAT THERE WAS NO COGENT BASIS FOR ASSUMING JURISDI CTION U/S 147 BY THE A.O. ACCORDINGLY THE NOTICE ISSUED U/S 148 AND THE SUBSEQUENT ASSESSMENT ORDER PASSED ARE HELD TO BE ILLEGAL AND BAD IN LAW. THE ASSESSMENT O RDER IS THEREFORE ANNULLED. 5 IT IS UNDISPUTED FACT THAT FOR THE ASSESSMENT YEA R IN QUESTION ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) ACCORDINGLY UND ER PROVISO TO SECTION 147 NOTICE IS TO BE ISSUED WITHIN FOUR YEARS FROM T HE END OF THE ASSESSMENT YEAR I.E. 4 YEARS FROM 31.3.1998 ACCORDINGLY THE T IME LIMIT FOR ISSUANCE OF NOTICE EXPIRED ON 31.3.2002 AND IN THIS CASE NOTICE WAS ISSUED ON 26.3.2004 WHICH IS BEYOND FOUR YEARS. IF THE ORIGINAL ASSESS MENT ORDER AND THE RE- ASSESSMENT ORDER ARE COMPARED ONE WILL REACH TO THE CONCLUSION THAT IN THE RE-ASSESSMENT ORDER THE ADDITION MADE IS ONLY OF R S.94 430/- THAT TOO OUT OF FOREIGN TRAVELING EXPENSES FOR WHICH ALL THE BOOKS OF ACCOUNTS AND VOUCHERS WERE PRODUCED BEFORE THE ASSESSING OFFICER AT THE T IME OF ORIGINAL ASSESSMENT WHICH WAS COMPLETED U/S 143(3) OF THE I. T. ACT. IN PARA 2 OF THE 8 ASSESSMENT ORDER IT IS CLEARLY MENTIONED THAT THE NOTICES U/S 142(1) AND 143(2) WERE AGAIN ISSUED ON 7.10.99 ALONGWITH A QU ESTIONNAIRE. IN RESPONSE TO THE SAID NOTICES THE LD. REPRESENTATIVES OF THE ASSESSEE APPEARED BEFORE THE REVENUE AUTHORITY AND ALSO FILED THE DETAILS WH ICH WERE EXAMINED WITH REFERENCE TO THE BOOKS OF ACCOUNTS. FROM THE NOTING OF THE LD.A.O IN ORIGINAL ASSESSMENT ORDER IT IS CLEAR THAT THERE IS NO ESCAP ED INCOME BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE PARTICULARLY WH EN ALL THE DETAILS REQUIRED FOR THE ASSESSMENT PROCEEDINGS INCLUDING THE DETAILS OF FOREIGN TRAVEL EXPENSES HAVE BEEN SUBMITTED AT THE TIME OF ORIGINAL ASSESSM ENT. 6. DURING HEARING THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT AS PER SECTION 149 (1) (B) ASSESSMENT COMPLETED U/S 143(3) COULD NOT BE RE-OPENED AFTER 4 YEARS UNLESS THE ESCAPED INCOME EXCEED RS.1 00 000/- WHILE IN THIS CASE IN RE-ASSESSMENT THE ADDITION OF ONLY RS.94 43 0/- WAS MADE THUS IT WAS CONTENDED THAT LD. CIT (A) IS RIGHT IN ANNULLING T HE ASSESSMENT. HE PLACED RELIANCE ON THE JUDGMENT CITED IN THE ORDER OF THE LD. CIT(A) AND IN ADDITION TO THAT FOLLOWING JUDGMENTS; (I) ACIT V/S PRESTIGE FOODS 12 ITJ 506 (ITAT INDORE BENCH) 2009 (II) FORAMER FRANCE 264 ITR 566 (SC) (III) AUM CHEMICALS V/S ACIT 119 ITD 21(MUM) (2009) (IV) AMIYA SALES & INDUSTRIES 274 ITR 25 (CAL) (V) IPCA LABORATORIES 251 ITR 416 (BOM) (VI) SARABHAI M LAKHANI 231 ITR 779. 7 ON GOING THROUGH THE REASON RECORDED WHICH IS ON PAGE NO.1 OF THE PAPER BOOK IT IS FOUND THAT SAME DOES NOT INCLUDE ANY ESC APEMENT/DISALLOWANCE ON ACCOUNT OF FOREIGN TRAVEL. ON GOING THROUGH THE AS SESSMENT ORDER WE FIND THAT THE LD. A.O HAS NOT MENTIONED THAT DISALLOWANCE OUT OF FOREIGN TRAVEL IS MADE 9 ON ACCOUNT OF NON-FURNISHING OF DETAILS AT THE TIME OF ORIGINAL ASSESSMENT ON THE PART OF THE ASSESSEE. REASSESSMENT CANNOT BE DO NE ON MERE CHANGE OF OPINION FOR WHICH WE ARE SUPPORTED BY THE DECISION OF THE FULL BENCH OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF KELVINATOR OF INDIA 256 ITR 1 AND THE DECISION OF THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF HUM BOLT VEDAG VS. ACIT (1999) 236 ITR 845. IT IS ALSO SETTLED LAW THAT WHEN THE FACTS WHICH COULD HAVE DISCOVERED BY THE ASSESSING OFFICE R BUT WERE NOT DISCOVERED DURING THE ORIGINAL ASSESSMENT WILL NOT CONSTITUTE NEW INFORMATION RECEIVED IT WOULD MERELY BE A CASE OF FRESH APPLIC ATION OF MIND BY THE ASSESSING OFFICER TO THE SAME SET OF FACTS AND IN S UCH A SITUATION IT WOULD BE A CASE OF MERE CHANGE OF OPINION WHICH DOES NOT PRO VIDE JUSTIFICATION TO THE ASSESSING OFFICER TO INITIATE PROCEEDINGS UNDER SEC TION 147 OF THE INCOME TAX ACT 1961. WHEN THE PRIMARY FACTS NECESSARY FOR THE ASSESSMENT ARE FULLY AND TRULY DISCLOSED TO THE ASSESSING OFFICER AT THE TIM E OF ORIGINAL ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER IS NOT ENTITLED TO COMMENCE PROCEEDINGS UNDER SECTION 147 OF THE ACT ON MERELY CHANGE OF OP INION. THE ASSESSING OFFICER CANNOT SIT AS A COURT OF APPEAL OVER ANOTHE R ASSESSING OFFICER WHO FRAMED THE ORIGINAL ASSESSMENT AND IT IS NOT OPEN T O THE ASSESSING OFFICER ORDERING REASSESSMENT TO SUBSTITUTE HIS OWN OPINION . RELIANCE CAN BE PLACED IN CIT VS. FEATHER FOAM ENTERPRISES 296 ITR 342 CI T VS. EICHER LIMITED 294 ITR 310 AND KLM ROYAL DURTCH AIRLINES VS. ASSTT. DI RECTOR OF INCOME TAX 292 ITR 49. 8. CONSIDERING THE ABOVE LEGAL POSITION AND THE IMP UGNED ORDER IT IS CLEAR THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN REOPENIN G THE ASSESSMENT ON MERE CHANGE OF OPINION AS IN THE ORIGINAL ASSESSMENT WHE REIN AO HAS ALLOWED THE 10 TRAVELING EXPENSES AFTER THOROUGH SCRUTINY OF THE D ETAIL SUBMITTED BY THE ASSESSEE AFTER VERIFYING THE SAME WITH THE BOOKS OF ACCOUNTS AND SUPPORTING MATERIAL AS MENTIONED IN PARA-2 OF ORIGINAL ASSESSM ENT ORDER DATED 31/03/2000 THUS IT WOULD BE A CASE OF MERE CHANGE OF OPINION WHICH DOES NOT PROVIDE JUSTIFICATION TO THE ASSESSING OFFICER TO INITIATE PROCEEDINGS U/S 147 OF THE INCOME TAX. WHEN THE PRIMARY FACTS OF FOREIG N TRAVEL NECESSARY FOR THE ASSESSMENT ARE FULLY AND TRULY DISCLOSED IN THE AUD ITED PROFIT AND LOSS ACCOUNT ENCLOSED ALONG WITH THE RETURN OF INCOME WHICH WAS AVAILABLE BEFORE THE ASSESSING OFFICER AT THE TIME OF ORIGINAL ASSESSMEN T PROCEEDINGS THEREFORE ASSESSING OFFICER IS NOT ENTITLED TO COMMENCE PROCE EDING U/S 147 OF THE ACT. OUR VIEW IS SUPPORTED BY THE DECISION FROM THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF ARJUN SINGH VS. ADIT (246 ITR 363) (MP) WHEREIN IT WAS CLEARLY HELD THAT BEFORE ASSUMING JURISDICTION U/S 147/148 THE AO IS SUPPOSED TO BE SATISFIED THAT THE TWIN CONDITIONS ARE SATISF IED. THE LD. CIT(A) HAS ALREADY DISCUSSED VARIOUS JUDICIAL PRONOUNCEMENTS WHICH ARE AVAILABLE IN THE IMPUGNED ORDER THEREFORE THERE IS NO NEED TO DEAL WITH THEM SEPARATELY BEING A MATTER OF RECORD. IN VIEW OF THESE FACTS AN D JUDICIAL PRONOUNCEMENTS WE ARE IN AGREEMENT WITH THE FINDING OF THE LD. FIR ST APPELLATE AUTHORITY THAT THERE WAS NO COGENT BASIS WITH THE LD. AO IN ASSUMI NG JURISDICTION U/S 147 OF THE ACT THEREFORE IT WAS RIGHTLY ANNULLED. RESULT ANTLY THERE IS NO MERIT IN THE APPEAL OF THE REVENUE THEREFORE DISMISSED. 9. AS FAR AS THE CROSS-OBJECTION NO.52/IND/2006 IS CONCERNED DURING HEARING IT WAS WITHDRAWN BY THE LD. COUNSEL FOR THE ASSESSEE THEREFORE IT IS DISMISSED AS WITHDRAWN. 11 FINALLY THE APPEAL OF THE REVENUE IS DISMISSED AND THE CO OF THE ASSESSEE IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 02.2.2010. (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 02.2.2010 {VYAS} COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD F ILE