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2023 (10) TMI 1317 - AT - Income TaxReopening of assessment u/s 147 - reassessment beyond 4 years - Undisclosed investment u/s. 69 - performance guarantees/deposits - deductions towards performance guarantee and other deposits by the PWD were in the nature of deposits that were refundable after a period of time as mutually agreed upon by the parties, thus, the same should have been shown by the assessee as deposits on the asset side of his balance sheet - HELD THAT:- When the assessee’s claim as regards the allowability of performance guarantee/other deposits, which the assessee accounted for under the head “Contract expenses,” had been looked into by the A.O in the course of original assessment proceedings, therefore, we find substance in the claim of the Ld. AR that in the absence of any fresh material coming to the notice of the A.O after the culmination of the original assessment proceedings that had culminated vide order passed u/s. 143(3) same could not have been reopened merely on the basis of a “change of opinion” on the basis of the same set of facts as were available on record in the course of the original assessment proceedings. As per the mandate of law, even where a concluded assessment is sought to be reopened by the A.O within a period of 4 years from the end of the relevant assessment year, it is a must that the A.O has fresh material or information with him, that had led to the formation of belief on his part that the income of the assessee chargeable to tax has escaped assessment. Our aforesaid view is fortified by the judgments of NYK Lime (India) Ltd [2012 (2) TMI 283 - BOMBAY HIGH COURT] and Purity Tech Textile Pvt. Ltd.[2010 (2) TMI 26 - BOMBAY HIGH COURT] As the case of the assessee had been reopened by the A.O merely on the basis of “change of opinion” and not on the basis of any fresh tangible material coming to his notice after the conclusion of the original assessment proceedings which would reveal any income of the assessee chargeable to tax had escaped assessment, therefore, in light of the aforesaid settled position of law, quash the assessment framed by the A.O u/s. 143(3)/147 of the Act dated Nil for want of valid assumption of jurisdiction. Decided in favour of assessee.
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