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2023 (1) TMI 1125 - AT - Income TaxReopening of assessment u/s 147 - Assessment u/s 143(3) Completed - deduction u/s 80IA - HELD THAT:- While completing the original assessment, the Assessing Officer has called for various details, which were duly furnished by the assessee and by accepting the explanations/details of the assessee, the assessment was completed under section 143(3) - On perusal of the details furnished by the assessee, it is amply clear that the assessee has very well furnished earlier years returns along with complete details vide its letter dated 12.07.2016 against the notice issued under section 142(1) of the Act dated 14.06.2016. Therefore, the contention of the Department that the reopening was carried out on totally a new issue that was detected at a later stage while studying the earlier year’s return data, appears to be change in opinion. Again, vide notice under section 142(1) Assessing Officer has called for the copies of agreement relating to maintaining and operating of Industrial Park at S. No. 3 as well as explanation towards large increase of unsecured loans during the year assessee filed detailed reply and the same were reproduced hereinabove. Having applied his mind, the AO came to a conclusion that the same does not addition thereby proceeded to frame the original assessment by disallowing the claim made under section 80IA of the Act alone. Thus, the interest disallowance proposed in the reasons for reopening of assessment is nothing but change of opinion. Thus we are of the considered opinion that the Assessing Officer reopened the assessment, which is mere change of opinion, which is not permissible as per the law laid down in the case of CIT v. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT] wherein, it was held that an assessment cannot be reopened on a mere change of opinion; reason to believe that the income chargeable to tax has escaped assessment is one of the conditions precedent for invoking the jurisdiction of the Assessing Officer to reopen the assessment under section 147 - Assessing Officer had power to re-assess but no power to review. If the concept of “change of opinion” is removed, review would take place in the garb of reopening of assessment. In the instant case, since no new material was brought on record after completion of assessment under section 143(3) of the Act, the reopening of assessment was not on account of fresh material or change of law, the reopening of assessment is liable to be quashed. Accordingly, we set aside the order of the ld. CIT(A) and quash the assessment order passed under section 143(3) r.w.s. 147 - Decided in favour of assessee.
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