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2006 (6) TMI 175 - AT - Income TaxIncome Escaping Assessment - Reopening of the assessment u/s 147 r/w section 148 on the basis of change of opinion - whether the Income-tax Officer had reason to believe that income chargeable to tax had escaped assessment for the assessment year in question by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts - HELD THAT:- It is seen from the original assessment order, the assessee has disclosed all the primary facts which has been discussed in the original assessment order and even the assertion made by the Assessing Officer in the reassessment order that in respect of claiming depreciation of an asset which did not exist at all, but for the investigation, assessee would have joyfully got away with his tax evasion, to the extent of a whopping Rs. 300 lakhs, for two assessment years. It is seen from the original assessment order that the assessee has filed the revised return disallowing the depreciation claimed himself and paid the taxes fully before 31-3-1998. This cannot be the subject-matter for reopening. The Hon'ble Apex Court in the case of Gemini Leather Stores where the decision of the Calcutta Discount Co. Ltd.[1971 (1) TMI 10 - SUPREME COURT]. Thus, it is seen from the records that the Assessing Officer has not given any failure on the part of the assessee to disclose the material facts whereas in the original assessment order all the details are discussed and after discussion and following the case laws, allowed the claim of the assessee, whether this tantamounts to change of opinion for reopening. For this, we will go to the case law of the Hon'ble Apex Court in the case of ITO v. Nawab Mir Barkat Ali Khan Bahadur[1974 (10) TMI 1 - SUPREME COURT]. Thus, respectfully following the case laws of the Hon'ble Apex Court, the Hon'ble jurisdictional High Court and other High Courts, we fairly feel that the reopening is not permissible on change of opinion as clearly evident from the reasons recorded by the Assessing Officer and the original assessment order passed by the Assessing Officer. In view of this, the reopening is held as bad in law. Accordingly, this issue of the cross-objection is decided in favour of the assessee and against the revenue.
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