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2022 (5) TMI 1224 - AT - Income TaxReopening of assessment u/s.147 r.w.s. 148 - non deduction of tds u/s 194C on loading / sorting expenses and towards container stuffing charges - Reopening beyond period of four years - Argument of violation of first proviso to section 147 of the Act as the original assessment was completed u/s.143(3) of the Act and there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of the assessee for the relevant assessment year - HELD THAT:- AO in the reasons recorded noted that there is no evidence for deduction of TDS as per column 27(a) of the Form No.3CD i.e., audit report filed by the assessee along with the return of income. It means that the assessee has filed the complete details of particulars before the AO and from very return of income the AO has chosen these reasons. We noted that this issue is squarely covered in favour of assessee assessee and against the Revenue by the decision of Hon’ble Supreme Court in the case of CIT vs. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT] as considered that there cannot be change of opinion based on the material which was already available with the AO at the time of original assessment. The Hon’ble Supreme Court further held that there should be some tangible material came to the notice of the AO after completion of assessment and on that basis reopening can be done. In the present case, reopening is beyond 4 years and the assessee’s case falls under the proviso to section 147 of the Act and there is no failure on the part of the assessee to disclose material facts necessary for its assessment truly and correctly for the relevant assessment year as the assessee has filed details towards loading / sorting expenses and towards container stuffing charges. Hence, even otherwise there is change of opinion in view of the decision of Hon’ble Supreme Court in the case of Kelvinator India Pvt. Ltd., supra. Hence, we quash the reopening and allow this jurisdictional issue in favour of the assessee.
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