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2016 (7) TMI 609 - ITAT KOLKATAReopening of assessment - non offering of truck income - non deduction of tds u/s 194C - Held that:- With regard to the first reason recorded by the AO namely not offering truck income to the extent of ₹ 67,600/-, the assessee had declared income from lorry plying of ₹ 50,000/- under the head “income from Basanti Automobiles”. Income u/s 44AE of the Act has been taken in the capital account. Therefore the assessee had declared income from truck plying in the original return of income. This factual position is not being disputed by the AO. Besides the above, there was no tangible material based on which the AO came to a conclusion that income from truck plying was not offered to tax by the Assessee in the original return of income. In fact the factual assertion in the letter dated 22.6.2011 that the Assessee owned three vehicles and that these were used in the business of plying trucks on hire is without any basis and is purely a surmise of the AO. As far as the second reason recorded by the AO is concerned it relates to the carriage inward charges in the business of wholesale dealing in potato seeds. As already observed that the AO examined the carriage inward account in the original assessment proceedings and did not think it fit that there was any violation of section 40(a)(ia) of the Act. It can thus be seen that this issue on which the AO initiated reassessment proceedings had been duly considered by the AO while concluding the proceedings u/s 143(3) of the Act. As during the course of original assessment, it is seen that no query regarding Tax deduction at source from transport payment has been made. Consequently no examination regarding disallowance u/s 40(a)(ia) has been made. Similarly other heads under for which assessments were reopened were not touched upon by the assessing officer during the original assessment. When in the original assessment proceeding the assessing officer has not examined the issue at all, no opinion was formed, the principle of change of opinion cannot apply. Further this is a case where the assessment has been reopened within 4 years of the end of the assessment year. Therefore the re-assessment proceeding cannot be treated as invalid on the ground that full and true disclosure of material fact was made in the original proceeding - Decided in favour of assessee
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