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2017 (3) TMI 143 - AT - Income TaxReopening of assessment - Prior period expenditure - disallowance contribution to superannuation fund - Held that:- As seen the question whether contribution to superannuation fund ought to be disallowed or not has already been gone into by the AO while concluding the original assessment proceedings. The Tax Audit Report which was referred to by the AO in the reasons recorded before issuing notice u/s 148 was very much available when the original assessment proceedings were concluded. As appears that on the very same material which was available when the original assessment proceedings u/s 143(3) of the Act were completed, the AO has sought to reopen the assessment proceedings u/s 148 of the Act merely on the basis of change of opinion. There was no tangible materials coming into the possession of the AO after conclusion of the assessment proceedings u/s 143(3) of the Act on the basis of which he formed a belief regarding escapement of income chargeable to tax. AO has come to a different conclusion on the material already available on record while concluding the assessment proceedings u/s 143(3) of the Act and merely on the change of opinion on the same set of facts. Such action of the AO has been held to be illegal and not valid in law by the decisions referred to by the assessee before CIT(A). We, therefore, hold that the initiation of proceedings u/s 147 of the Act was not valid and therefore order of reassessment has to be annulled and is accordingly annulled. We are of the view that the contribution cannot be considered as prior period expenses in view of the specific provision of section 36(1)(iv) r.w.s. 43B and deduction on the basis of payment is permissible in law. We are of the view that order of CIT(A) in this regard does not call for any interference. - Decided against revenue
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