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2022 (5) TMI 1323 - AT - Income TaxReopening of assessment u/s 147 - deemed dividend under section 2(22)(e) - HELD THAT:- The very beginning of the first line the AO has started with the words that upon verification of the case records it is seen that assessee has received loans and advances from Vananchal Infrastructure Pvt. Ltd. during the year ended 31.03.2012 and thereafter in the second para it was mentioned that there was no deliberation on this issue in the assessment framed u/s 143(3) and thus the AO has not formed any opinion about the deemed dividend and finally the AO noted that he has reason to believe that income has escaped assessment within the meaning of section 147. In our view, this is nothing but the reopening of assessment on the basis of material which was available before the AO in the original assessment proceedings as there was no tangible material before the AO and therefore this is a patent case of review of the earlier assessment framed on the basis of same materials which is not permissible under the Act. The case of the assessee finds support from the decision of CIT Vs Kelvinatpor India Ltd.[2010 (1) TMI 11 - SUPREME COURT] wherein it has been held that the re-opening can be made on the basis of tangible materials before the AO and not otherwise. Therefore, we are inclined to set aside the order of Ld. CIT(A) and the reopening of assessment is quashed as being invalid and contrary to law. Appeal of assessee allowed.
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