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assessee's condonation petition and affidavit, the delay in filing the cross objection is condoned.

3. The facts of the case are that the assessee filed a return of income on 30.09.2011 declaring a book profit of Rs.5,20,24,121/-. The case was selected for scrutiny and assessment under section 143(3) of the Income Tax Act, 1961 was completed on an income of Rs.5,86,94,110/-. Subsequently, it came to the notice of the Department that the assessee had claimed expenditure of Rs.6.42 Crores paid to non-resident under various heads of expenditure viz., export commission Rs.1.98 Crores, interest to foreign bank Rs.41.35 Lacs and testing charges of Rs.4,02,44,816/-. The ld. AO noted that the assessee had paid testing charges to non-resident for certification about quality of bullet proof vest for bullet penetration and strength. From the same, he concluded that testing charges were in the nature of fee for technical services which were covered under section 9(1)(vii) of the Act and TDS should have been deducted under section 195 of the Act for such payment. Since the assessee had not deducted TDS, the case was reopened under section 147 r.w.s. 148 of the Act. However, the assessee did not file a return in response to the notice under section 148 and instead filed objections to the same vide his letters. Subsequently though, the assessee filed a letter requesting that the return filed under section 139(1) of the Act be treated as the return filed in compliance to notice under section 148. The ld. AO first proceeded to dispose the objections raised by the assessee to the initiation of proceedings under section 147. He pointed out that there was no restriction for initiating re-assessment proceedings under section 147, if the ld. AO has discovered any new and fresh fact which was not presented at the time of original assessment. He cited several case laws and also pointed out that the Hon'ble Supreme Court had held in the case of Calcutta Discount Company Limited vs. ITO in 41 ITR that it was the duty of the assessee to disclose all primary facts which have a bearing on liability of income earned by the assessee being subjected to tax, but from a perusal of the records of the case, it was revealed that neither had any queries been raised by the ld. AO A.Y. 2011-12 M.K.U. Pvt. Ltd.

regarding TDS deduction under section 195 on, 'testing charges' nor had the assessee's furnished any record regarding TDS deduction on the same. No facts regarding TDS deduction had been given in the Audit Report also, thus, the assessee's claim that all information in support of the return and claims and deductions have been placed on record was not correct. It was further observed that in the case of Little Angels Educational Society vs. ITO (2011) 336 ITR 413 (AP), the Hon'ble Andhra Pradesh High Court had held that a decision having effect on assessment, which was missed at the time of original assessment, but came to the knowledge of the AO subsequently, constitutes information for re-opening original assessment. The AO pointed out that in this case there was, 'tangible material' on record, on the basis of which the re-assessment proceedings had been initiated. He also placed reliance on the case of ACIT vs. Rajesh Jhaveri Stock Brokers (P.) Ltd., 291 ITR 500 (SC) for the proposition that the ld. AO was free to initiate proceedings under section 147, if all the ingredients of section 147 were fulfilled and failure to take steps under section 143(3), would not render the ld. AO powerless to initiate reassessment proceedings. The ld. AO also pointed out that the re-assessment proceedings had not been finalized and due opportunity would be provided to the assessee in the case. He also rejected the second set of objections filed by the assessee regarding the issuance of notice beyond time, pointing out that since the amount escaped was likely to be Rs.1,00,000/- or more, the notice could be issued within six years from the end of the relevant assessment year. He reiterated the fact that the information regarding TDS deduction on expenditure claim under the head, 'testing charges', had neither been provided by the assessee, nor had the AO asked for the same, hence there could be no change of opinion in the matter. After disposing of these objections, the assessee was given opportunity to furnish a reply on the issue of non-deduction of TDS made to non-resident for testing charges amounting to Rs.4,02,44,816/- and asked to show cause as to why the provisions of section 40a(ia) should not be invoked for failure to deduct TDS under section 195 r.w.s. 9 of the Act. In response, the assessee filed a submission that the payment did A.Y. 2011-12 M.K.U. Pvt. Ltd.

5. The Revenue is aggrieved at this order of the ld. CIT(A) and has accordingly come before us. Sh. R.K. Agarwal, CIT DR (hereinafter referred to as the ld. CIT DR) pointed out that the ld. CIT(A) had erred in law and in facts in quashing the assessment proceedings under section 147 r.w.s. 143(3) of the Act without considering the facts of the case and the AOs contention. He pointed out that in the case of Little Angels Educational Society vs. ITO (2011) 336 ITR 413 (AP), the Hon'ble Andhra Pradesh High Court had held that a decision having an effect on assessment, which was missed at the time of original assessment but came to the knowledge of the AO subsequently, constitutes information for opening original assessment. He pointed out that the ld. AO had elaborately spelt out how the assessee had not placed information regarding the non-deduction of TDS on payment to non-resident, 'testing charges' either in the return or in the Audit Report or in any submission, because the ld. AO had not asked any questions in this regard in the provisional assessment. Therefore, going by the decision of the Hon'ble Andhra Pradesh High Court and also by the decision of the Hon'ble Supreme Court in the ACIT vs. Rajesh Jhaveri Stock Brokers (P.) Ltd., (supra), the ld. AO was fully within his rights to initiate re-assessment proceedings on these grounds. The ld. CIT(A), then drew our attention to the fact that the ld. CIT(A) had not discussed the issue on merits, while the ld. AO had gone into great detail and pointed out that in the case of Havells India Limited, the Hon'ble Delhi High Court had held that fees for testing and certification paid to US Company were to be treated, 'fees for technical services' (FTS) under the I.T. Act. Hence, the assessee was required to deduct TDS on that payment, in the light of the provisions of section A.Y. 2011-12 M.K.U. Pvt. Ltd.

Department against the orders of the ld. CIT(A), who had granted relief to the assessee on this issue. Accordingly, the ITAT vide its order dated 14.06.2019, had dismissed the various appeals of the Revenue. That being the case and the facts in this year being identical to the facts of the subsequent years, it is clear that since there was no human intervention involved in the process of ballistic testing, the assessee was not required to deduct tax at source under section 195, as the payments in this regard could not be regarded as fees for technical services, within the meaning of the aforesaid judgment. Therefore, no addition can be sustained in this matter. Furthermore, we note that in view of this finding, that no part of the payment made for testing charges was disallowable in the hands of the assessee, it cannot be said that the assessee had failed to disclose any material fact during the course of its previous assessment. The payments that had been made had been duly disclosed and because there was no obligation to deduct tax, therefore, there could be no obligation to disclose as to why the tax had not been deducted. Therefore, we do not agree with the reasoning of the ld. CIT DR that the ld. CIT(A) had erred in law or in facts in quashing the assessment proceeding under section 147, on account of the judgment of the Hon'ble Andhra Pradesh High Court in the case of Little Angels Educational Society vs. ITO (supra), because in this case, there was only a change of opinion that was behind the reopening of the case and therefore, the ld. CIT(A) was justified in following his detailed order in Appeal No. CIT(A)-2/10109/DCIT-6/16- 17 for the A.Y. 2008-09, where he had pointed out that the AO had failed to note that in the case of Calcutta Discount Company Limited (supra), the Hon'ble Supreme Court had held that once conclusions are drawn by the AO, the AO cannot at a later point of time form a different opinion, by giving a second thought to the facts disclosed by the assessee, holding that he committed an error in computing taxable income and reopening the assessment under section 147. Further, we hold that there was no failure on the part of the assessee to disclose primary facts. Since it was not required to deduct tax at source, it could not be expected to furnish information regarding the tax deducted on testing charges. Thus, we find no A.Y. 2011-12 M.K.U. Pvt. Ltd.