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2012 (11) TMI 279 - ITAT, HYDERABADRe-assessment - Omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Income-tax Officer or to disclose fully and truly all material facts - Deduction u/s 80HHE - Following the decision of court in case of [Commissioner of Income Tax, Delhi Versus M/s. Kelvinator of India 2010 (1) TMI 11 - SUPREME COURT OF INDIA ] held that:- post-1st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open - The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then,in the garb of re-opening the assessment, review would take place - to reopen an assessment tangible material should be there. In the present case, it is a fact that that the reassessment was completed on 03/07/2006 and subsequently, another notice u/s 148 was issued 17/03/2008. The reassessment was completed on 28/11/2008 denying the deduction u/s 80HHE to the assessee for the reason that she was not engaged in the business of export of software and that she was merely a software consultant providing services to the overseas client. In earlier reassessment completed on 03/07/2006, the Assessing Officer had thoroughly examined the material available on record and the agreement was available, hence, the subsequent reassessment was merely a change of opinion - Reassessment made by the Assessing Officer u/s 147 is without jurisdiction and, therefore, the same invalid - In the result, appeal of the assessee is allowed.
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