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2019 (8) TMI 173 - HC - Income TaxReopening the assessment u/s 147 - within four years from the end of the relevant assessment year - change of opinion - deduction u/s 80HHC - reopening based on audit objection - assessee contended that AO in reopening the assessment has acted under the dictation of the CIT - since AO rejected the objections raised in the audit report reopening is by changing his opinion - HELD THAT:- In this case, the Assessing Authority was quite alive to this issue. There is not even any allegation that the Assessee had failed to disclose all the material facts in relation to the transaction in question. In such circumstances, permitting the Revenue to reopen the assessment would amount to permitting the Revenue to review its earlier order, which jurisdiction is clearly not vested in the Revenue while exercising powers under u/ss 147 and 148. After the audit raised its objection, the AO submitted reply to the same in which the AO resisted the audit objection and defended the completion of assessment. From the perusal of the reply, it is very apparent that the AO, at the stage of finalisation of assessment, had very clearly addressed the issue as to whether the transaction of sale of shares of an Indian company to a foreign company, in the facts and circumstances of the present case, constituted an export and consequently the proceeds were deductible u/s 80HHC. Both, the Commissioner (Appeals), as well as the ITAT, have recorded concurrent findings of fact that the aforesaid action on the part of the AO amounts to 'acting under dictation'. The material on record does indicate that there was no independent application of mind on the part of the AO and the notice proposing reassessment was issued reeling under the dictation from the CIT who was, admittedly, his superior officer. In such circumstances, there is no good ground to interfere with the impugned Judgment and Order. According to us, is a clear case of the AO merely changing his opinion or having a second thought on the basis of materials on record and that too reluctantly and reeling under the dictation from the superior officer. Accordingly, we are satisfied that there is no case made out to interfere with the impugned Judgment and Order. Whether the AO is precluded from issuing a notice for reassessment where such AO has already replied to the audit objection justifying his earlier position - HELD THAT:- We do not deem it necessary to go into the larger issue as to whether the Assessing Officer is precluded from issuing a notice for reassessment where such Assessing Officer has already replied to the audit objection justifying his earlier position. No doubt, in Rajan N. Aswani [2018 (3) TMI 315 - BOMBAY HIGH COURT] there are some observations to this effect as urged by Mr. Naniwadekar. However, Ms. Razaq did make attempts to distinguish the said decision. According to us, it is really not necessary to go into this larger issue, since, based upon the discussion as aforesaid, we are satisfied that there was no case made out for reopening of the assessment. - Appeal is dismissed
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