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2011 (3) TMI 1555 - HC - Income TaxReopening of assessment - items for which assessment is sought as merged with the order of Commissioner (Appeals) - independent existence of reasons to believe - HELD THAT:- The assessment order in respect of the items for which assessment is sought to be reopened has merged with the order of Commissioner (Appeals) and as such has no independent existence and therefore the assessment could not be reopened in respect of the said items, Moreover, the reopening of assessment apart from being based on a factually erroneous premise, is also based upon a mere change of opinion without there being any tangible material to come to the conclusion that there is escapement of income from assessment. Hence in view of the law laid down by the Supreme Court in the case of COMMISSIONER OF INCOME TAX, DELHI VERSUS M/S. KELVINATOR OF INDIA LIMITED [2010 (1) TMI 11 - SUPREME COURT] the condition precedent for reopening of assessment has not been fulfilled and as such, the assumption of jurisdiction under section 147 of the Act is not valid. The impugned notice issued under section 148 of the Act, therefore, cannot be sustained. The impugned notice is set aside - petition allowed.
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