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2012 (7) TMI 521 - HC - Income TaxChallenging reopening of assessment - notice u/s 148 - Held that:- Issuing notice u/s 148 in the present case was based on the ground that the income earned from the non fund based activities of the respondent had been included in the fund based income so as to claim excess deduction u/s 36(1)(viii). The reasons only provide a conclusion and give no material particulars of information obtained during the course of assessment proceedings for the assessment year 1998-99. Therefore the reasons recorded do not indicate any tangible material which has led to a reasonable belief that income has escaped assessment AO while reassessing the assessee by an order has in fact taken a ground different from the grounds in the reasons recorded for reopening the assessment u/s 148 - The reasons furnished for reopening the assessment alleged that non fund income had been shown in fund based income so as to avail of a higher deduction. However, the basis of the order was that 20.1% out of the gross expenses attributed to non fund income was excessive and ought to be restricted to only 10%. Thus, the basis of the order is completely different from the reasons recorded for reopening the assessment which is clearly not permissible - the Tribunal was correct in taking the view that the reopening of assessment by notice u/s 148 is not sustainable in law - case is based on merely change in opinion on the material which was already on record and considered - in favour of assessee.
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