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2018 (9) TMI 425 - HC - Income TaxReopening of assessment - change of opinion - contention of the petitioner that the very same issue came up for adjudication for the Assessment Year 2007-08 - conceptual difference between the power to review and power to reassess - Held that:- It cannot be disputed that the original assessment order dated 31.08.2009 under Section 143[3] of the Act was in consonance with the view taken in the preceding as well as succeeding year. It is clear that the audit query raised, influenced the AO to take a contrary view against the decision arrived at in so far as allowing the revenue expenditure claimed by the Assessee towards licence fee/logo. These material facts supports the case of the petitioner-Assessee that the reassessment proceedings initiated under Section 147 is without jurisdiction and requires to be set aside. Assessee has furnished detailed material on the query made by the AO. If such query made is answered by the Assessee, but the AO does not deliberate on that point in the assessment order and does not make any addition in the assessment order, would show that the issue was examined by the AO, but do not find out any ground or reason to make addition or reject the stand of the Assessee. In the circumstances, it must be presumed that the AO had formed an opinion while framing the assessment under Section 143(3) of the Act. The arguments of the learned Counsel for the Revenue that the issue was not addressed by the AO, is a case of ‘no opinion’ cannot be countenanced. The assessments concluded in preceding/subsequent years and the implication in the assessment order under Section 143(3) establishes the opinion formulated by the AO on the subject matter. No re-assessment proceedings can be opened based on the Audit objections sans application of mind. It is manifest that the AO had no ‘reason to believe’, any escapement of income to assessment. Hence, assumption of jurisdiction by the AO to invoke section 147 is unjustifiable. Notice dated 11.02.2014 and the order dated 01.07.2015 are unsustainable. - Decided in favour of assessee.
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