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2018 (7) TMI 290 - AT - Income TaxReopening of assessment - wrong name given in the notice - curable mistake u/s 292B - notice in the name of legal heir after assessee's death - disallowance of service tax liability u/s 43B - Held that:- Hon’ble Supreme Court’s decision in the case of Sky Light Hospitality LLP Vs. ACIT [2018 (4) TMI 529 - SUPREME COURT OF INDIA] supports the view that wrong name given in the notice is merely a clerical error which could be corrected u/s 292B of I.T.Act. In the instant case the legal heir was given sufficient opportunity and he has submitted the required information. Hence, we hold that mentioning the name of the assessee, a dead person, on the assessment order is a mere clerical error which is curable u/s 292B of I.T.Act, since the notice was issued correctly in the name of legal heir. Accordingly, we set a side the order of the Ld.CIT(A) and uphold the assessment made by the AO, on this issue and reject the objections raised by the assessee. Plain reading of the reasons recorded by the AO shows that the service tax was shown in the liabilities grouping under sundry creditors which is to be disallowed u/s 43B of I.T.Act., and not an allowable expenditure. Thus, the AO formed the belief that the income chargeable to tax, has escaped assessment and accordingly issued the notice u/s 148 of I.T.Act. Though the AO has mentioned decision of CIT Vs. Associated Pigments Ltd. [1993 (6) TMI 249 - CALCUTTA HIGH COURT] in the reasons to take the support, the AO has not relied on the decision of Associated Pigments Ltd., for forming the belief. The verification of original assessment order passed u/s 143(3) shows that the AO has not examined the issue at the time of making the assessment u/s 143(3) on 31.12.2008. AO has not examined the issue and taken a stand regarding the allowability of unpaid service tax which was grouped under the head sundry creditors. From the above, it is established that the AO has not formed any opinion at the time of original assessment, hence it cannot be called as change of opinion. We hold that there is no change of opinion in the assesseee’s case and the action of the AO in reopening the assessment is upheld. Accordingly, we set aside the order of the CIT(A) and uphold the reopening of assessment. - decided against assessee.
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