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2014 (4) TMI 477 - HC - Income TaxValidity of reopening of assessment – Mere change of opinion - The entire issue on the basis of which the assessment is sought to be reopened was examined by the AO in the original assessment - The additional requirement flowing from proviso to section of such income chargeable to tax having escaped assessment for the failure of the assessee to disclose truly and fully all material facts, therefore need not be satisfied - if an issue had been examined by the AO in the original assessment proceedings, any reopening on the basis of such issue without any additional material would be a mere change of opinion – relying upon Gujarat Power Corporation v. Asst. CIT [2012 (9) TMI 69 - Gujarat High Court] - even when the AO in an order of assessment had accepted the assessee’s stand and granted the claim as put forth, reopening on the same issue would not be permissible on the basis of selfsame material on record. In the return filed itself, the petitioner had produced Form 10 as well as the resolution of the Trust setting apart such amount for a period of five years to be utilized for the purpose of the Trust - It was after scrutinizing the claim of deduction under section 11(2) of the Act that the AO framed the assessment - He made no disallowance on such claim - He disallowed part of the depreciation claimed by the assessee - Though there was no reason given by the AO for making any disallowance on this score, it cannot be stated that he had not scrutinized the assessee’s claim for deduction – thus, the notice can be said to be based on mere change of opinion on the part of the AO and is set aside – Decided in favour of Assessee.
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