2023 (9) TMI 481 - ITAT RAIPUR

Validity of Reopening of assessment - Long term capital gain - whether reopening of the concluded assessment based on a “mere change of opinion”? - HELD THAT:- As “reasons to believe” that had formed the basis for reopening the assessee’s case u/s. 147 of the Act, it transpires that the same as stated by the Ld. AR and, rightly so, is based on a mere “change of opinion” of the A.O, on the same set of facts as were there before his predecessor while framing the original assessment u/s. 143(3)

Reopening a concluded assessment based on the same set of facts as were available on record during the original assessment is not permissible under law. The aforesaid view is supported by the judgment of Kelvinator of India Ltd [2010 (1) TMI 11 - SUPREME COURT] Thus,we concur with the contention advanced by the Ld. AR that as the case of the assessee had been reopened based on a mere “change of opinion”, therefore, the A.O had wrongly assumed jurisdiction and framed the impugned assessment u/s. 143(3) r.w.s 147.

Assessee had disclosed fully and truly all the material facts; therefore, by no means could she have been saddled with any failure to disclose fully and truly all material facts that were necessary for framing her assessment, which would have otherwise justified bringing her case within the realm of the extended period contemplated in the “1st proviso” of section 147 of the Act for validly reopening the same.

Thus A.O had wrongly assumed jurisdiction and reopened the concluded assessment of the assessee, which was earlier framed by his predecessor vide order passed u/s. 143(3) therefore, quash the consequential assessment order passed by him u/s. 143(3) r.w.s. 147 - Assessee appeal allowed.