STANDARD CHARTERED INVESTMENTS & LOANS (INDIA) LTD, MUMBAI v. DCIT 1(3), MUMBAI

ITA 7068/MUM/2016 | 2005-2006
Pronouncement Date: 29-11-2019 | Result: Allowed

Appeal Details

RSA Number 706819914 RSA 2016
Assessee PAN AAHCS6432N
Bench Mumbai
Appeal Number ITA 7068/MUM/2016
Duration Of Justice 2 year(s) 11 month(s) 24 day(s)
Appellant STANDARD CHARTERED INVESTMENTS & LOANS (INDIA) LTD, MUMBAI
Respondent DCIT 1(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted J
Tribunal Order Date 29-11-2019
Last Hearing Date 24-04-2018
First Hearing Date 20-11-2019
Assessment Year 2005-2006
Appeal Filed On 05-12-2016
Judgment Text
IN THE INC OME TAX APPELLATE TRIBUNAL G BENCH MUMBAI BEFORE SHRI S . RIFAUR RAHMAN AM & SHRI RAVISH SOOD JM ./ I.T.A. NO . 7068 / MUM/ 2016 ( / ASSESSMENT YEAR: 2005 - 06 ) M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. CORPORATE OFFICE 7 TH FLOOR C - 38/39 G - BLOCK BANDRA KURLA COMPLEX BANDRA (EAST) MUMBAI - 400 020 / VS. D CIT - 1(1)(1 ) ROOM NO. 533 AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020 ./ ./ PAN NO. AAHCS 6432 N ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHR I DHANESH BAFNA & MS. CHANDANI SHAH AR S / RESPONDENTBY : MRS. SNITA BILLA DR / DATE OF HEARING : 20.11 .201 9 / DATE OF PRONOUNCEMENT : 29.11.2019 / O R D E R PER S. RIFAUR RAHMAN ACCOUNTANT MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMIS S IONER OF INCOME TAX (APPEALS) - 3 IN 2 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. SHORT REFERRED AS LD. CIT (A) MUMBAI DATED 15.09.16 FOR A SSESSMENT YEAR (IN SHORT A Y ) 2005 - 06 . 2 . T HE BRIEF FACTS OF THE C ASE ARE THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2005 06 ON 31 . 10 . 2005 DECLARING TOTAL INCOME OF RS. 3 00 52 360/ - . THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE INCOME TAX A CT 1961 (IN SHORT ACT) ON 04.02.2008 AT A TOTAL INCOME OF RS. 4 55 68 670/ - . SUBSEQUENTLY THE CASE WAS REOPENED AND N OTICE UNDER SECTION 148 OF THE A CT DATED 26. 03. 2010 WAS ISSUED AND SERVED ON THE ASSESSEE. THE ASSESSING OFFICER COMMUNICATED THE REASONS FOR REOPENING TO THE ASSESSEE VIDE LETTER DATED 05.05.2010 A ND NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED AND SERVED ON THE ASSESSEE. 3. THE ASSESSING O FFICER REOPENED ASSE SSMENT ON THE FOLLOWING REASONS: - 'DURING THE ASSESSMENT YEAR 2005 - 06 THE AS SESSEE HAS DEBITED AN AMOUNT OF RS.32 51 57 000/ - UNDER THE HEAD ' PROVISION FOR DEP RECIATION ON INVESTMENT' IN ITS PROFIT AND LOSS ACCOUNT. IT IS SEEN FROM THE BALANCE SHEET THAT THE ABOVE PROVISION IS MADE ON ACCOUNT OF DEPRECIATION 3 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. IN VALUE OF NO N CONVERTIBLE DEBENTURES WHICH ARE SHOWN UNDER THE HEAD OF 'INVESTMENT' AND NOT UNDER THE HEAD 'STOCK IN TRADE'. HENCE DEPRECIATION CLAIMED (DIMINUTION IN VALUE OF INVESTMENT) IS NOT IN ORDER. FURTHER IT IS NOTICED FROM THE TDS CERTIFICATES ATTACHED WITH THE RETURN OF INCOME THAT THE ASSESSEE HAS RECEIVED INTEREST INCOME AMOUNTING TO RS. 99 68 81 796 ON WHICH IT HAS CLAIMED THE ENTIRE TDS CREDIT. HOWEVER THE INTEREST INCOME CREDITED TO THE PROFIT TO RS.4 38 79 796 HAS NOT BE EN OFFERED FOR TAX. IN VIEW OF THE ABOVE FACTS THE CLAIM OF PROVISION FOR DEPRECIATION ON INVESTMENT' IN THE PROFIT AND LOSS ACCOUNT AMOUNTING TO RS.32 51 57 000/ - AND NOT OFFERING INTEREST INCOME OF RS. 4 38 79 796/ - HAS RESULTED IN INCOME ESCAPING ASSESSMENT TO THE TUNE OF RS.36 90 36 796/ - WITHIN THE MEANING OF SECTION 147 OF THE I.T. ACT 1961. THE RELEVANT ASSESSMENT YEAR BEING A.Y.2005 - 06 THE REMEDIAL ACTION CONTEMPLATED IS BEFORE THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. 4. FURTHER THE ASSESSEE F ILED ITS SUBMISSION BEFORE THE ASSESSING OFFICER AND ASSESSING OFFICER REJECTED THE SUBMISSIONS OF THE ASSESSEE AND COMPLETED THE ASSESSMENT BY MAKING ADDITION 4 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. ON PROVISION FOR DEPRIVATION ON INVESTMENT AND INTEREST INCOME NOT OFFERED TO TAX. 5. AGGRIEVED WITH THE ABOVE ORDER ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) AND BEFORE HIM MADE A SUBMISSION AND OBJECTED TO REOPENING OF THE ASSESSMENT AND ON MERITS OF THE CASE WITH REGARD TO ADDITIONS MADE BY THE ASSESSING OFFICER. A FTER CONSIDERING THE DETAIL SUBMISSIONS OF THE ASSESSEE ON REOPENING OF THE ASSESSMENT AND RELYING ON VARIOUS CASE LAWS LD . CIT(A) DISMISSED THE GROUND S RAISED BY THE ASSESSEE BY THE FOLLOWING OBSERVATIONS : - 6.31 THUS 1 HAVE NO HESITATION IN HOLDING THAT THE LD. A.O. HAD CORRECTLY REOPENED THE ASSESSMENT. HAVING HELD SO IT COULD NOT ALSO BE SAID THAT REASSESSMENT FRAMED ON THE BASIS OF THE ABOVE SAID REOPENING WAS VIOLATIVE OF ANY STATUTORY PROVISION. SO FAR AS THE MERITS OF THE ADDITIONS IS CONCERNED IT WILL BE DEALT WITH IN SUB SEQUENT PARAGRAPHS AND THEREFORE FOR THE SAKE OF BREVITY IT IS HELD THAT BOTH REOPENING AND REASSESSMENT WERE INFRA VIRES. SINCE THE CASE IS BEING TAKEN UP ON MERITS 1 AM OF THE OPINION THAT INSTEAD OF PUTTING EMPHASIS ON TECHNICALITIES WE MUST LOOK THE 5 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. CASE ON MERITS AND JUDICIOUS VIEW BE TAKEN. IN VIEW OF THE FACTS GROUND NO. 1 IS DISMISSED. 6. AGGRIEVED WITH THE ABOVE OR DER ASSESSEE IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS OF APPEAL: - GROUND 1 THE COMMISSIONER OF INCOME - TAX (APPEALS) - 3 ('CIT (A)') ERRED IN CONFIRMING THE REOPENING OF ASSESSMENT MADE BY THE DEPUTY COMMISSIONER OF INCOME RANGE - L(S) ('DCIT') UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME - TAX ACT 1961 ON THE GROUNDS THAT INCOME HAS ESCAPED ASSESSMENT. THE APPELLANT PRAYS THAT THE DCIT BE DIRECTED TO QUASH THE REASSESSMENT FOR THE SUBJECT YEAR AS THE SAME IS WITHOUT JURISDICTION AND NOT PERMITTED UNDER THE LAW. GROUND 2 THE LEARNED CIT (A) ERRED IN CONFIRMING THE DISALLOWANCE MADE BY DCIT IN RELATION TO THE PROVISION FOR DEPRECIATION ON INVESTMENTS OF RS. 32 51 57 000 ON THE BASIS THAT INVESTMENTS IN DEBENTURES UNDER CONSIDERATION IS SHOWN UNDER THE 6 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. HEAD 'INVESTMENTS' AND NOT UNDER THE HEAD 'STOCK - IN TRADE' IN ITS BALANCE - SHEET. THE APPELLANT SUBMITS THAT THE LEARNED CIT(A) FAILED TO APPRECIATE THE SUBMISSIONS MADE BY THE APPELLANT DURING THE COURSE OF APPELLATE PROCEE DINGS. THE LEARNED CIT(A) HAS OBSERVED THAT SOME CRITICAL QUESTIONS REMAINED UNEXPLAINED BY THE APPELLANT. IN THIS REGARD THE APPELLANT SUBMITS THAT THE LEARNED CIT(A) HAS NOT GRANTED ANY REASONABLE OPPORTUNITY OF HEARING FOR THE SAME. GROUND 3 THE LEARNE D CIT(A) ERRED IN REMANDING THE MATTER TO THE DCIT AND NOT DELETING THE ADDITION MADE OF RS. 4 38 79 796 TO THE APPELLANT'S INTEREST INCOME ON THE BASIS THAT THE SAID INCOME HAS ESCAPED ASSESSMENT. THE APPELLANT PRAYS THAT DCIT BE DIRECTED TO DELETE THE AD DITION SO MADE AS IT HAS CREDITED THE ENTIRE INTEREST INCOME TO PROFIT & LOSS AND OFFERED THE SAME TO TAX AND THUS NO INCOME HAS ESCAPED ASSESSMENT. THE APPELLANT CRAVES LEAVE TO ADD ALTER AND/OR AMEND OR MODIFY ONE OR MORE GROUNDS OF APPEAL. 7 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. 7. AT THE TI ME OF H EARING LD. AR OF THE ASSESSEE EXPLAINED THE GROUNDS RAISED BY THE ASSESSEE AND IN GROUND NO. 1 ASSESSEE HAS CHALLENGED THE REOPENING OF THE ASSESSMENT AND OTHER TWO GROUNDS ARE ON MERITS OF THE CASE. SINCE THE GROUND NO. 1 IS ON REOPENING OF THE A SSESSMENT WHICH GOES TO THE ROOT OF THE CASE WE HEARD ONLY GROUND NO. 1 AND THE OTHER GROUNDS RELATING TO MERITS OF THE CASE ARE INTERLINKED WE HEARD FIRST THE GROUND ON REOPENING OF THE ASSESSMENT. ACCORDINGLY WE TAKE UP ONLY THE GROUND ON REOPENING OF THE ASSESSMENT AND OTHER GROUNDS ARE NOT HEARD AND IN CASE THE DECISION GOES AGAINST THE ASSESSEE ON REOPENING WE INFORMED ON THE BENCH THAT ANOTHER OPPORTUNITY WILL BE GIVEN TO THE ASSESSEE TO ARGUE ON MERITS OF THE CASE. 8. LEARNED AR OF THE ASSESSEE B ROUGHT TO OUR NOTICE THE REASONS FOR REOPENING OF THE ASSESSMENT WHICH IS REPRODUCED BY ASSESSING OFFICER IN HIS ORDER AT PARA 2. HE SUBMITTED THAT ASSESSING OFFICER USED THE WORD SEEN FROM THE BALANCE SHEET IT SHOWS THAT ASSESSING OFFICER HAS CONSIDERED THE INFORMATION WHICH IS ALREADY AVAILABLE IN THE ASSESSMENT RECORDS AND THERE IS NO FRESH MATERIAL OR TANGIBLE MATERIAL AVAILABLE WITH THE ASSESSING 8 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. OFFICER TO INITIATE THE ASSESSMENT PROCEEDINGS. IT CLEARLY INDICATES THAT THE ASSESSING OFFICER HAS CONSID ERED ALL THESE MATERIALS IN THE ORIGINAL ASSESSMENT AND THE SAME INFORMATION IS NOW BEING USED TO REOPEN THE ASSESSMENT. FURTHER HE BROUGHT TO OUR NOTICE PAGE 79 OF THE PAPER BOOK IN WHICH THE ASSESSEE ACCOUNTED NON - CONVERTIBLE DEBENTURES IN CURRENT INVEST MENTS WHICH IS AS PER RBI GUIDELINES. FURTHER HE BROUGHT TO OUR NOTICE AT PAGE NO 83 OF THE PAPER BOOK WHICH IS NOTES FORMING PART OF FINANCIAL STATEMENTS. THE ABOVE NOTES ARE FORMING PART OF BALANCE SHEET AND AS PER NOTE 9 OF THE ABOVE ASSESSEE HAS CLE ARLY DECLARED THAT THESE CURRENT INVESTMENTS ARE PURCHASED BY THE COMPANY IS ON THE RECORDS OF BUSIN ESS WITH THE INTENTION TO TRADE A ND HE ALSO BROUGHT TO OUR NOTICE PAGE 75 OF THE PAPER BOOK WHICH IS PROFIT AND LOSS ACCOUNT FOR THE YEAR IN WHICH ASSESSEE HAS DECLARED INTEREST INCOME AND PROFIT ON SALE OF NONCONVERTIBLE DEBENTURES AS INCOME FOR THE YEAR HE SUBMITTED THAT ON ONE HAND ASSESSING OFFICER ACCEPTS THE INCOME DECLARED BY THE ASSESSEE AND WHEN IT COMES TO ALLOWING THE EXPENDITURE ASSESSING OFFICE R DISALLOWS THE EXPENDITURE CLAIMED BY THE ASSESSEE WHICH IS PART OF THE BUSINESS EXPENDITURE. 9 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. 9. HE BROUGHT TO OUR NOTICE PAGE 173 OF THE PAPER BOOK WHICH IS ORIGINAL ASSESSMENT PASSED BY THE ASSESSING OFFIC ER UNDER SECTION 143(3) OF THE A CT. IN THE ORIGI NAL ASSESSMENT ORDER THE ASSESSING OFFICER HIMSELF NOTIFIES THAT THE RETURN OF INCOME WAS ACCOMPANIED WITH COMPUTATION OF INCOME AUDIT REPORT IN FORM NO 3CA 3CD 3C EB AUDITED PROFIT AND LOSS ACCOUNT BALANCE SHEET ALONG WITH THE ANNEXURES TSD CERTIFI CATE ET CETERA. LEARNED AR SUBMITTED THAT THE ORIGINAL ASSESSMENT WAS COMPLETED AFTER CONSIDERING THE ABOVE SAID DOCUMENTS NOW ASSESSING OFFICER IN ORDER TO REOPEN THE ASSESSMENT RELYING ON THE SAME DOCUMENTS WHICH WAS AVAILABLE BEFORE THE ASSESSING OFFI CER TO COMPLETE THE ORIGINAL ASSESSMENT. HE SUBMITTED THAT ON VERIFICATION OF THE NOTICE ISSUED BY THE ASSESSING OFFICER AND ORIGINAL ASSESSMENT ORDER IT IS CLEAR THAT ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY NEW TANGIBLE MATERIAL TO REOPEN THE ASSE SSMENT AND THE REASONS RECORDED BY THE ASSESSING OFFICER INDICATES THAT IT IS CHANGE OF OPINION WHICH IS NOT PERMIS SIBLE UNDER SECTION 147 OF THE A CT FOR THAT PROPOSITION LEARNED AR RELIED ON THE FOLLOWING CASE LAW: 10 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. I) ASIAN PAINTS LTD VRS. DCIT (2009) 30 8 ITR 195 (BOM) II) KOTAK MAHINDRA ASSET MANAGEMENT CO. LTD. VRS. ACIT (ITA NO. 1815/MUM/2017) (MUM - TRIB) III) CIT VRS. KELVINATOR OF INDIA LTD. (2010) 187 TAXMAN 312 (SC) IV) ICICI PRUDENTIAL LIFE INSURANCE CO. LTD. VRS. ACIT (2010) 231 CTR 233 (BOM) 10. ON THE OTHER HAND LD. DR SUBMITTED T HAT THE POST - AMENDMENT FROM 01. 04.1989 THE SUB STITUTED SECTION 147 OF THE IT A CT IT IS ENOUGH THAT ASSESSING OFFICER HAS REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT IS SUFFICIENT TO REOPEN THE ESCAPE ASSES SMENT IT CONFERS JURISDICTION TO REOPEN THE ASSESSMENT. FURTHER SHE SUBMITTED THAT IN THE PRESENT CASE THE ASSESSMENT WAS REOPENED WITHIN FOUR YEARS THEREFORE IT IS WITHIN THE POWERS OF THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT ONCE ASSESSING OFFICER HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED. SHE SUBMITTED THAT ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT HAS NOT VERIFIED THE ASPECT WHICH IS EXPLAINED IN THE REASONS TO 11 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. REOPEN THE ASSESSMENT. FURTHER SHE BROUGHT TO OUR NOTICE PAGE 193A OF THE PAPE R BOOK AS PER WHICH ASSESSEE HAS DECLARED BEFORE THE ASSESSING OFFICER THE DETAILS OF INTEREST INCOME ON CURRENT INVESTMENT AND DETAILS OF GAINS ON SALE OF NONCONVERTIBLE DEBENTURES BUT IT DOES NOT DISCLOSE ANY FURTHER MERE SUBMITTING THE INFORMATION BEF ORE ASSESSING OFFICER WITHOUT EXPLAINING THE REASONS FOR SUCH SUBMISSION IT CANNOT BE SAID THAT ASSESSEE HAS FULLY DISCLOSED THE INFORMATION BEFORE THE ASSESSING OFFICER. FINALLY SHE RELIED ON THE ORDERS PASSED BY THE TAX AUTHORITIES BELOW AND SHE SUBMITT ED THAT THE EXPLANATION 1 TO SECTION 147 OF THE ACT APPLIES TO THE PRESENT CASE. 11. CONSIDERED THE RIVAL SUBMISSIONS AND MATERIAL PLACED ON RECORD FURTHER CONSIDERED THE CASE LAW SUBMITTED BY THE ASSESSEE. WE NOTICE FROM THE RECORDS SUBMITTED BEFORE US T HAT THE ORIGINAL ASSESSMENT WAS COMPLETED ON 04. 02.2008 AND THE ASSESSEE HAS FILED RETURN OF INCOME ALONG WITH COMPUTATION OF INCOME AUDIT REPORTS PROFIT AND LOSS AND BALANCE SHEET DULY AUDITED ALONG WITH THEIR ANNEXURES ETC. AND THE ABOVE DOCUMENTS WERE AVAILABLE BEFORE THE ASSESSING OFFICER AND FURTHER ASSESSING OFFICER HAS 12 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. ASKED INFORMATION FROM THE ASSESSEE AND ASSESSEE HAS FURNISHED THE DETAILED INFORMATION BEFORE THE ASSESSING OFFICER BEFORE COMPLETING THE ORIGINAL ASSESSMENT. BEFORE US LEARNED AR BROUGHT TO OUR NOTICE THE INFORMATION WHICH WERE ALREADY SUPPLIED BEFORE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT. ON CAREFUL READING OF THE REASONS TO REOPEN THE ASSESSMENT THE ASSESSING OFFICER HAS CLEARLY INDICATED THAT HE HAS SEEN THE INFORMATIO N FROM THE BALANCE SHEET AND PROFIT AND LOSS AVAILABLE ON ASSESSMENT RECORDS. FROM THE RECORD IT ALSO INDICATES THAT ASSESSING OFFICER HAS REVISITED THE ASSESSMENT RECORDS AND FOUND THAT THE INCOME HAS ESCAPED FROM THE ASSESSMENT AND PROCEEDED TO ISSUE N OTICE UNDER SECTION 148 OF THE ACT . FROM THE FIRST APPELLATE ORDER WE NOTICE THAT LD CIT(A) HAS OBSERVED THAT IT IS ENOUGH THAT ASSESSING OFFICER HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. THIS IS GOOD ENOUGH JUSTIFICATION FOR REOPENING. 12 . FROM THE RECORD IT IS CLEAR THAT THE ASSESSEE HAS DECLARED ALL THE INFORMATION IN THE BALANCE SHEET ITSELF THAT THE CURRENT INVESTMENTS WERE MEANT FOR BUSINESS PURPOSE AND ALL THE RELEVANT 13 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. INTEREST INCOME AND PROFIT ON SALE OF NONCONVERTIBLE DEBENTURES WERE PART OF THE RECORDS SUBMITTED IN ORIGINAL ASSESSMENT. NOW THE SAME RECORDS AND INFORMATION ARE USED BY THE ASSESSING OFFICER TO REASSESS THE INCOME IN OUR CONSIDERED VIEW IT AMOUNTS TO CHANGE OF OPINION AND CHANGE OF OPINION IS NOT ALLOWED AS PER THE PROVISIONS OF SECTION 147. 13. WE DRAW STRENGTH FROM THE JUDGMENT OF HONBLE HIGH COURT IN THE CASE OF ASIAN PAINTS LTD VRS. DCIT (2009) ITR 195 (BOM) WHEREIN IT WAS HELD AS UNDER: - 10. IT IS FURTHER TO BE SEEN THAT THE LEGISLATURE HAS NOT CONFERRED POWER ON THE ASSESSING OFFICER TO REVIEW ITS OWN ORDER. THEREFORE THE POWER UNDER SECTION 147 CANNOT BE USED TO REVIEW THE ORDER. IN THE PRESENT CASE THOUGH THE ASSESSING OFFICER HAS USE D THE PHRASE 'REASON TO BELIEVE' ADMITTEDLY BETWEEN THE DATE OF THE ORDER OF ASSESSMENT SOUGHT TO BE REOPENED AND THE DATE OF FORMATION OF OPINION BY THE ASSESSING OFFICER NOTHING NEW HAS HAPPENED THEREFORE NO NEW MATERIAL HAS COME ON RECORD NO NEW IN FORMATION HAS BEEN RECEIVED IT IS MERELY A FRESH APPLICATION OF MIND BY THE SAME ASSESSING OFFICER TO THE SAME SET OF 14 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. FACTS AND THE REASON THAT HAS BEEN GIVEN IS THAT THE SOME MATERIAL WHICH WAS AVAILABLE ON RECORD WHILE ASSESSMENT ORDER WAS MADE WAS INAD VERTENTLY EXCLUDED FROM CONSIDERATION. THIS WILL IN OUR OPINION AMOUNT TO OPENING OF THE ASSESSMENT MERELY BECAUSE THERE IS CHANGE OF OPINION. THE FULL BENCH OF THE DELHI HIGH COURT IN ITS JUDGMENT IN THE CASE OF KELVINATOR [2002] 256 ITR 1 REFERRED TO A BOVE HAS TAKEN A CLEAR VIEW THAT REOPENING OF ASSESSMENT UNDER SECTION 147 MERELY BECAUSE THERE IS A CHANGE OF OPINION CANNOT BE ALLOWED. IN OUR OPINION THEREFORE IN THE PRESENT CASE ALSO IT WAS NOT PERMISSIBLE FOR RESPONDENT NO. 1 TO ISSUE NOTICE UNDE R SECTION 148. 14. WE ALSO DRAW STRENGTH FROM THE DECISION OF COORDINATE BENCH OF ITAT IN THE CASE OF KOTAK MAHINDRA ASSET MANAGEMENT CO. LTD. VRS. ACIT (ITA NO. 1815/MUM/ 2017) WHEREIN IT WAS HELD AS UNDER: - 10. WE FURTHER FIND SUBSTANTIAL FORCE IN THE C ONTENTION OF THE LD. A.R THAT AS PER THE MANDATE OF LAW EVEN WHERE A CONCLUDED ASSESSMENT WAS 15 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. SOUGHT TO BE REOPENED BY THE A.O WITHIN A PERIOD OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IT WAS MUST THAT THE A.O HAD FRESH MATERIAL OR INFORMA TION WITH HIM THAT HAD LED TO THE FORMATION OF BELIEF ON HIS PART THAT THE INCOME OF THE ASSESSEE CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. THE AFORESAID CONTENTION OF THE LD. A.R IS DULY SUPPORTED BY THE JUDGMENTS OF THE HONBLE HIGH COURT OF BOMBAY VIZ. (I) NYK LIME (INDIA) LTD. VS. DCIT (NO.2) [2012] 346 ITR 361 (BOM); AND (II) PURITY TECH TEXTILE PVT. LTD. VS. ACIT & ANR. [2010] 325 ITR 459 (BOM). IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS WE ARE OF THE CONSIDERED VIEW THAT AS THE REOPENING OF THE CASE OF THE ASSESSEE HAD BEEN RESORTED TO BY THE A.O MERELY ON THE BASIS OF A CHANGE OF OPINION AS REGARDS THE ALLOWABILITY OF THE ESOP EXPENSE OF RS. 2 63 50 515/ - ON THE SAME SET OF FACTS AND MATERIAL AS WERE THERE BEFORE HIS PREDECESSOR WHO HAD ALLOW ED THE SAID CLAIM OF EXPENDITURE OF THE ASSESSEE IN THE ORIGINAL ASSESSMENT FRAMED UNDER SEC. 143(3) DATED 30.09.2010 THUS THE SAME IN LIGHT OF THE AFORESAID SETTLED POSITION OF LAW CANNOT BE SUSTAINED AND ON THE SAID COUNT ITSELF IS LIABLE TO BE VACATE D. 16 I.T.A. NO. 7068 /MUM/201 6 M/S STANDARD CHARTERED INVESTMENTS AND LOANS (INDIA) LTD. 15. CONSIDERING THE FACTS OF THE PRESENT CASE AS WELL AS JUDICIAL PRONOUNCEMENTS AS DISCUSSED ABOVE WE ALLOW THE GROUNDS RAISED BY THE ASSESSEE. 16 . IN THE NET RESULT THE APPEAL FILED BY THE ASSESSEE STA NDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH NOV. 20 19 . SD/ - SD/ - ( RAVISH SOOD ) (S. RIFAUR RAHMAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 29 . 11 .201 9 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. / DR ITAT MUMBAI 6. / GUARD F I LE / BY ORDER . / (DY./ASSTT.REGISTRAR) / ITAT MUMBAI