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2015 (8) TMI 1036 - AT - Income TaxReopening of assessment under section 147 - disallowance of deduction under section 80-IA - Held that:- A perusal of reasons for reopening reproduced hereinabove show that nowhere it is alleged by the Revenue, that the assessment proceedings are initiated as the assessee has failed to disclose fully and truly all material facts necessary for its assessment. The two preconditions laid down by the Hon'ble Delhi High Court in the case of CIT vs. Kelvinator of India Ltd. (2002 (4) TMI 37 - DELHI High Court) for exercising jurisdiction under section 147, that have been subsequently affirmed by the Hon'ble Supreme Court of India in the case of CIT vs. Kelvinator of India Ltd. reported as [2010 (1) TMI 11 - SUPREME COURT OF INDIA] are absent in the present case. One of the submissions of Ld. DR is that in assessment year 2002-03 assessment was made under section 143(1), therefore the Assessing Officer had no occasion to apply his mind on the return of income. The Hon'ble Delhi High Court in the case of CIT vs. Orient Craft Ltd. (2013 (1) TMI 177 - DELHI HIGH COURT) has erased the line of distinction between assessment made under section 143(1) and 143(3). Thus, the contention of the Ld. DR does not hold ground. A perusal of the original assessment orders passed under section 143(3) of the Act for the assessment years 2005-06 and 2006-07 shows that the Assessing Officer has clearly stated that the assessee has claimed deduction under Chapter VI-A of the Act. AO while drawing computation of total income has clearly mentioned, Income from windmill activity and has thereafter granted deduction under Chapter VI-A of the Act on windmill income. Once the Assessing Officer has applied his mind while passing the assessment order and has granted relief, there is no question of reviewing the same under the garb of reassessment proceedings. In the reasons for reopening nowhere it has been stated that the deduction claimed by the assessee under section 80-IA of the Act has come to the knowledge of the Assessing Officer after passing of assessment orders. In our considered view, it is clear case of change of opinion. Thus, AO has acted beyond his jurisdiction in initiating reassessment proceedings under section 147 of the Act. - Decided in favour of assessee.
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