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2022 (4) TMI 114 - HC - Income TaxReopening of assessment u/s 147 - Tangible material to justify reopening of assessment - addition u/s 40(a)(ia) - HELD THAT:- It is now settled that an assessment order can be passed either in terms of section 143(1) or 143(3) of the I-T Act, and when a regular order of assessment is passed in terms of section 143 (3), a presumption that such an order is passed on application of mind is attached to it. This presumption is raised with the aid of section 114(e) of the Evidence Act which stipulates that judicial and official acts are regularly performed. A useful reference in this regard could be made to the decision in Commissioner of Income Tax v. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT] - In the considered opinion of this court, when it is undisputed that the AO asked for details relating to the details of the payments made as subcontractor charges and the TDS affected and the petitioner has furnished those details, with the AO issuing the assessment order dated 22.11.2016 without any additions, it must be deemed that the AO has opined in favour of the petitioner on the TDS deductions made. The reason offered in justification of the notice issued under section 147 read with section 148 of the I-T Act is that on perusal of records it is observed by the AO that though the petitioner has paid subcontractor charges the petitioner has not deducted the TDS for the entire amount and therefore a sum cannot be allowed under section 40(a)(ia) of the I-T Act. If there is conscious application of mind on an issue during assessment, and this Court as in the circumstances of the case has already opined that there was such conscious application of mind and therefore a deemed opinion, there cannot be reassessment only because of an error in such opinion. The reasons offered by the A.O to justify reassessment cannot be accepted as an objective view based on any subsequent information in the absence of necessary material in this regard. This Court is of the considered view that the impugned notice issued under Section 148 read with Section 147 by the Additional Commissioner of Income Tax, Special Range-I (the first respondent) cannot be sustained and must be quashed on the ground of lack of jurisdiction. - Decided in favour of assessee.
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