TMI Blog2016 (7) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly, all these appeals are dismissed. The question posed for our consideration is answered in favour of the assessee and against the revenue and it is held that the Tribunal has not committed any error in interpreting the provision of Section 147 of the Income Tax Act, 1961 - TAX APPEAL NO. 1914 of 2009, TAX APPEAL NO. 1917 of 2009 - - - Dated:- 20-7-2016 - KS JHAVERI And G. R. UDHWANI, JJ. MR SUDHIR M MEHTA, ADVOCATE for the Appellant MR MANISH J SHAH, ADVOCATE for the Opponent JUDGMENT ( PER : HONOURABLE MR.JUSTICE KS JHAVERI ) 1. By way of these appeals, the revenue has challenged the order of the Income Tax Appellate Tribunal, Ahmedabad Bench D , Ahmedabad (For short, the Tribunal ) in ITA No.36/Ahd/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-assessment. Vide Assessment order dated 28.3.205, the Assessing Officer determined total income of the assessee at ₹ 30,88,510/- by making addition of difference of booking amount being ₹ 19,75,330/-. Against said order, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals), who vide order dated 28.10.2005 partly allowed the appeal of the assessee and deleted addition made by the Assessing Officer. Against the said order, the department preferred an appeal before the Income Tax Appellate Tribunal while the assessee filed Cross Objection No.50/Ahd/2006 in the said Appeal. Both the appeal and the Cross Objection were disposed of by the impugned order, whereby the appeal of the revenue was dismissed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance and balance sheet filed was not added. He therefore, reopened the assessment u/s.147 of the I.T. Act. Before me, the ld.A.R. submitted that all the particulars were already on record and considered and what had now happened was a mere change of opinion or rather taking a different view on the same facts considered by the AO in the course of the original assessment. Reconciliation between the two figures was also shown and there was no need for any addition nor any valid ground for this reopening. I have considered the submissions and do not agree with the appellant on this count. As per explanation 1 to Section 147, production before the AO of account books or rather evidence from which material evidence could with due d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofits or gains chargeable to income tax have escaped assessment, and secondly he must also have reason to believe that such escapement occurred due to reason of either omission or failure on the part of the taxpayer to disclose fully or truly all material facts necessary for his assessment of that year. Both these conditions were conditions precedent to be satisfied before the Assessing officer could have jurisdiction to issue notice because the opinion formed earlier by himself (or more often, by a predecessor-Income-tax officer), was in his opinion, incorrect, judicial decisions have consistently held that this could not be done. (see Indian and Eastern Newspaper Society v. CIT (1979) 119 ITR 996 (SC) and A.L.A. Firm v. CIT (1991) 189 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (2002) 256 ITR 1 (Delhi), Hon'ble Delhi High Court held that section 147 of the Act does not postulate conferment of power upon the Assessing officer to initiate reassessment proceedings upon his mere change of opinion. Hon'ble Court further observed as follows: We also cannot accept the submission of Mr.Jolly to the effect that only because in the assessment order, detailed reasons have not been recorded an analysis of the materials on the record by itself may justify the Assessing Officer to initiate a proceeding under section 147 of the Act. The said submission is fallacious. An order of assessment can be passed either in terms of sub-section (1) of section 143 or sub-sec. (3) of section 143. When a regular order of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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