B. Whether On The Facts And Circumstances Of The Case Andin Law, The Hon’ble Itat Was Justified In Upholding Theorder Of The Ld. Cit(A) Passed After Relying The v. Kelvinator Of India Ltd. 320 Itr 561 (Sc)Whereas The Facts Of Case Of Kelvinator Of India Ltd. Aredifferent From The Assessee's Case?In Law, The Hon’ble

Signature Not Verified $~61*IN THE HIGH COURT OF DELHI AT NEW DELHI %Date of Decision : 27.05.2025 CORAM:HON'BLE MR. JUSTICE VIBHU BAKHRUHON'BLE MR. JUSTICE TEJAS KARIAVIBHU BAKHRU, J. (ORAL) 1.The Revenue has filed the present appeal under Section 260A of theIncome Tax Act, 1961, [the Act] impugning an order dated 04.04.2024[impugned order] passed by learned Income Tax Appellate Tribunal, in ITA No. 4491/Del/2019 & 4492/Del/2019 in respect ofAssessment Year 2009-10. 2.The Revenue had preferred the said appeals before the learned ITATagainst an order dated 25.03.2019 and 18.03.2019 passed by the learnedCommissioner of Income Tax (Appeals)-28, New Delhi, [CIT(A)]. By theorder dated 25.03.2019 the learned CIT(A) had set aside the order dated29.06.2017 passed by the Assessing officer under Section 271(1)(c) ofthe Act. And, in terms of the order dated 18.03.2019, the learned CIT(A)had allowed the assessee’s appeal against the assessment order dated 29.12.2016 passed under Section 143(3) of the Act and had deleted theadditions made to the returned income of the assessee. The learned CIT(A)reasoned that since the assessee had prevailed in his appeal as to thequantum of additions, the order imposing penalty would be unsustainable. 3.The assessee had filed his return of income for AY 2009-10 on25.07.2009 declaring an income of ₹10,92,498/-. The said income comprised of salary amounting to ₹9,92,492/- and income from other sources amounting to ₹2,02,706/-. The assessee’s return was processed under Section 143(1) of the Act. 4.On 28.03.2016, the AO issued a notice under Section 148 of the Actafter recording its reasons for reopening the assessment for AY 2009-10.The only reason as recorded for the reopening was the mismatch in the Form26AS and the petitioner’s return. The AO had noticed that the Form 26ASindicated a higher TDS and on the said basis found that there was adifference in the salary income as disclosed by the assessee in his return andForm 26AS which was based on the information as furnished by thepetitioner’s employer. 5.Thereafter, during the re-assessment proceedings the AO reconciledthe TDS as reflected in the Form 26AS and the salary as disclosed by theassessee. Concededly, it was evident from the Form 26AS that there wereduplicate entries. Resultantly, the quantum of TDS as reflected was inflated.This was the principal reason for the mismatch between the income fromsalary as disclosed by the assessee and as ascertained from the TDS asreflected in Form 26AS. After eliminating the duplicate entries, the AOfound that there was apparent difference of only ₹1926/- and accordingly made an addition of the said amount. Additionally, the AO also found certain entries in books of certain related parties. The AO was of the viewthat those entries should be imputed to the petitioner and accordingly madeadditions in respect of those entries as well. 6.The assessee had appealed the said assessment order dated 29.12.2016before the learned CIT(A). The learned CIT(A) found that there was noreason for the AO to re-open the assessment as there was no tangiblematerial available with the AO, which could furnish a reason to believe thatthe assessee’s income had escaped assessment. Concededly, Form 26AS,was the only material on which the AO had surmised that the assessee’sincome has escaped assessment. The CIT(A) did not consider the same astangible material on the basis of which the re-opening of the assessmentcould be premised. The learned CIT(A) faulted the AO for assumingjurisdiction and set aside the assessment order. The Revenue appealed thesaid decision before the learned ITAT, which concurred with the view of thelearned CIT(A). 7.In the aforesaid context the Revenue has projected the followingquestions for consideration of this Court:- 7.In the aforesaid context the Revenue has projected the followingquestions for consideration of this Court:- A. Whether on the facts and circumstances of the case andin law, the Hon’ble ITAT was justified in upholding theorder of the Ld.CIT(A) passed after relying the judgmentof the Hon'ble Delhi High-court in the case CIT vs.Orient Craft Ltd 354 ITR 536 (Del) whereas the facts ofcase of orient craft Ltd. are different from the assessee'scase?in law, the Hon’ble ITAT was justified in upholding theorder of the Ld.CIT(A) passed after relying the judgmentof the Hon'ble Delhi High-court in the case CIT vs.Orient Craft Ltd 354 ITR 536 (Del) whereas the facts ofcase of orient craft Ltd. are different from the assessee'scase? B. Whether on the facts and circumstances of the case andin law, the Hon’ble ITAT was justified in upholding theorder of the Ld. CIT(A) passed after relying thejudgment of the Hon'ble Supreme court in the case ofCIT vs Kelvinator of India Ltd. 320 ITR 561 (SC)whereas the facts of case of Kelvinator of India Ltd. aredifferent from the assessee's case?in law, the Hon’ble ITAT was justified in upholding theorder of the Ld. CIT(A) passed after relying thejudgment of the Hon'ble Supreme court in the case ofCIT vs Kelvinator of India Ltd. 320 ITR 561 (SC)whereas the facts of case of Kelvinator of India Ltd. aredifferent from the assessee's case? C. Whether on the facts and circumstances of the case and in law, the Hon’ble ITAT erred in upholding the order ofCIT(A)passedafternarratingthefactsthattheAssessing Officer did not have any tangible material inhis possession for the purpose of initiating reassessmentproceedings u/s 147 of the Act, whereas the Form 26ASwas available on records for reason to believe forescapement of income of Rs. 4,28,880/-? D. Whether on the facts and circumstances of the case andin law, the Hon’ble ITAT erred in upholding the order ofCIT(A) passed quashing the assessment order withoutgoing through the facts and merits of the case? 8.In our view, the present appeal does not throw up any substantialquestions of law. We say so for the reason that it is clear from the findingsrecorded that there were apparent errors in the Form 26AS which could bediscovered by merely looking at it. Certain entries were repeated, andtherefore the income from salaries returned by the petitioner did not conformto the TDS reflected in the Form 26AS. Plainly, if there is material on recordwhich on the face of it appears to be erroneous, the same cannot beconsidered as a tangible material for forming a belief that the assessee’sincome had escaped assessment. 9.It is the Revenue’s case that since the assessee’s return was not pickedup for scrutiny, the extended period of limitation of six years would applyand, therefore, any material that could give rise to reason to believe that theassessee’s income has escaped assessment would be sufficient to reopen theassessment. The Revenue relies upon the decision of this court in Indu LataRangwala v. Deputy CIT: (2016) 384 ITR 337 in support of its contention.10.It is correct that where the return filed by the assessee has not beenexamined by issuance of notice under Section 143(3) of the Act; therefore,the question of change of opinion may not arise. However, this is not anissue involved in this present petition. This is not a case where the Signature Not Verified assumption of jurisdiction has been faulted on the ground that there has beena change of opinion. The decision in the case of Indu Lata Rangwala v.Deputy CIT, (supra) is not an authority for the proposition that anassessment can be reopened on the material that does not furnish reasons tobelieve that an assessee’s income has escaped assessment. Signature Not Verified assumption of jurisdiction has been faulted on the ground that there has beena change of opinion. The decision in the case of Indu Lata Rangwala v.Deputy CIT, (supra) is not an authority for the proposition that anassessment can be reopened on the material that does not furnish reasons tobelieve that an assessee’s income has escaped assessment. 11.In the present case, we find that the learned CIT(A) as well as thelearned ITAT have been persuaded to accept that there was no tangiblematerial for the AO to believe that the petitioner’s income had escapedassessment on the basis of the quality of the material as available with theAO. Given the fact that there were apparent errors in the Form 26AS and ifthe duplicate entries were eliminated, according to the AO, there was only adifference of ₹1926/- in the income of salary as returned by the assessee and as reflected in the Form 26AS; we are unable to accept that Form 26ASwould furnish any reason for the AO to believe that the assessee’s incomehad escaped assessment. 12.In view of the above, the present appeal is dismissed. 13.All the pending applications also stand disposed of. VIBHU BAKHRU, J TEJAS KARIA, J MAY 27, 2025KG Click here to check corrigendum, if any