TMI Blog2011 (12) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion on this issue but once the AO has taken the decision in original assessment then the decision cannot be substituted by another AO by issuing notice under s. 148 of the Act - Decided in favor of the assessee - ITA No. 305/Jd/2009; - - - Dated:- 16-12-2011 - R.K. Gupta, N.L. Kalra, JJ. R.H. Gohel for the Revenue Amit Kothari for the Assessee ORDER N.L. Kalra, Accountant Member:- 1. The Revenue has filed an appeal against the order of the learned CIT(A), Udaipur, dt. 31st March, 2009 for the asst. yr. 2005-06 (sic 2003-04). 2.1 The first ground of Revenue is that the learned CIT(A) is not justified in quashing to action of reopening of assessment under s. 148 of the Act. 2.2 The assessee filed the return on 2nd Dec. 2003 and the same was processed under s. 143(1)(a) of the Act. Subsequently scrutiny assessment was completed under s. 143(3) on 27th Dec., 2005. Subsequently, it came to the notice of the AO that the assessee has not reduced deduction under s. 80-IA from profit of the business fir computing deduction under s. 80HHC of the Act. Accordingly a notice under s. 148 of the Act was issued on 9th Feb., 2007 and the assessee in respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as examined and granted by the assessing authority, there was no omission or failure on the part of the assessee to disclose any material fact necessary for the assessment. At the time of submission of the original return, as per the requirements of the law, the assessee submitted certificates from the chartered accountant in the prescribed forms claiming such exemptions. Thus, the primary facts were before the AO when he made the assessments under sub-s. (3) of s. 143 and it was not open to him to invoke the provisions of s. 147 of the Act to reopen the assessments because he might have omitted to notice certain facts by oversight. For change of opinion, the provisions of s. 147 of the Act cannot be put to service. The notices were liable to be quashed.' The Authorised Representative has also cited the decisions in the following cases:- (i) CIT vs. Digvijay Singh (2007) 213 CTR (MP) 490 : (2007) 292 ITR 314 (MP); (ii) Bapalal and Co. Exports vs. Jt. CIT (2007) 208 CTR (Mad) 330 : (2007). 289 ITR 37 (Mad); (iii) CIT vs. Cameo Colour Co. (2002) 173 CTR (Bom) 255 : (2002) 254 ITR 565 (Bom); (iv) CIT vs. Corporation Bank Ltd. (2002) 174 CTR (SC) 577 : (2002) 254 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this section for the purpose of this section also it be deemed to be excess income chargeable to tax as escaped assessment. Clause (C) of this Explanation is applicable in the case of the appellant where the assessment has been made but income chargeable to tax has been assessed; such income has been made subject to excessive relief under this Act or excessive loss or depreciation allowance or any other allowance under this Act has been computed. The relevant portion of this section is that such income and also any other income chargeable to tax which has escaped assessment or provisions of cl. (c) as mentioned above. In case of the appellant all the three issues which have been dealt with by the AO i.e. deductions under ss. 80HHC, 80-IA/80-IB, indirect cost, 90 per cent of interest income in the reassessment proceeding were also considered at the time of original assessment under s. 143(3) which is clear from the reply of the appellant mentioned above. It means that the AO has no new facts or materials available with him to reopen the assessment. There was (sic no) escapement of any other income which was left by the AO at the time of original assessment. Further, there was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed for technical purpose." 2.6 We have heard both the parties. The original assessment was completed under s. 143(3) on 27th Dec. 2005. We have already reproduced the reasons recorded by the AO. During the course of proceedings before us, the learned Departmental Representative has relied on the following decisions in support of his contentions that the learned CIT(A) was not justified in cancelling the reassessment:- 1. Consolidated Photo and Finvest Ltd. vs. Asstt. CIT (2006) 200 CTR (Del) 433 : (2006) 281 ITR 394 (Del):- In this case, it has been held that a mere change of opinion is applicable to a situation where the AO has applied his mind and has taken a conscious decision on a particular matter of issue. Change of opinion is not applicable in a case where the order of the of assessment does not address itself to the aspect which is basis for reopening of the assessment. 2. Praful Chunilal Patel vs. M.J. Makwana, Asstt. CIT (1998) 148 CTR (Guj) 62 : (1999) 236 ITR 832 (Guj):- In this case if a particular item though reflected on records was not subjected to assessment then the AO can initiate the reassessment proceedings as it will not be a case of cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r available at pp. 1 and 2 of the paper book filed by the Revenue. The office note in the original assessment order showed that order was passed after discussion with Addl. CIT, Range-1, Udaipur. The AO has considered all the aspects. The Hon'ble apex Court in the case of CIT vs. Kelvinator of India Ltd. (supra) has held that change of opinion does not stand obliterated after the substitution of s. 147 of IT Act, 1961, by the Direct Tax Laws (Amendment) Act, 1987. The concept of 'change of opinion' must be treated as an in-built test to check the abuse of power. The records clearly indicate that the AO wanted to review the original order. There is no tangible material with the AO for the purpose of initiating the reopening of the assessment. It is not the case of the Revenue that Jurisdictional High Court or Hon'ble apex Court has held that deduction under s. 80HHC is to be allowed after reducing deduction under s. 80-IB of the Act. of course there is divergence of opinion on this issue but once the AO has taken the decision in original assessment then the decision cannot be substituted by another AO by issuing notice under s. 148 of the Act. We therefore, feel that the learned CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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