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2020 (7) TMI 402 - HC - Income TaxValidity of Reopening of assessment - change of opinion - same reasons were the subject matter of the proceedings under Section 143(3) or the proceedings under Section 263 once again - assessee claimed depreciation on block of assets – water supply and drainage at 15% and the said asset was shown separately and not in the plant and machinery - as per AO restriction of depreciation to 10% was for a small portion of the block of assets and 5% on rest was to be disallowed and this had resulted in short computation of disallowance of depreciation - HELD THAT:- Issue cannot be permitted to be raised more than once. Not stopping with that, upon change of officer, the Department, once again, issued notice dated 28.3.2013 to reopen the assessment and in that notice, a finding was rendered that the relevant portion of the order under Section 143(3) of the Act was restricted and the Assessing Officer stated that the restriction of depreciation to 10% only to a small portion of the block of assets was incorrect. In fact, this was the very same reason, which was posed to the respondent - assessee in the proceedings under Section 143(3) of the Act. Therefore, it is evidently clear that reopening was a case of change of opinion. A bare reading of Section 147 of the Act will clearly show that in all contingencies of reopening, the Assessing Officer should have reasons to believe that income chargeable to tax escaped assessment. If the very same reasons were the subject matter of the proceedings under Section 143(3) of the Act or the proceedings under Section 263 of the Act, once again, for the very same reasons, the power under Section 147 cannot be invoked and having done so, the CIT(A) as well as the Tribunal were right in coming to the conclusion that the reopening was bad in law. Thus, by applying the decision of Kelvinator of India Ltd. [2002 (4) TMI 37 - DELHI HIGH COURT]a s confirmed by the Hon’ble Supreme Court [2010 (1) TMI 11 - SUPREME COURT] where the case pertains to an assessment before 01.4.1989 or thereafter, mere change of opinion cannot confer jurisdiction upon the Assessing Officer to initiate proceedings under Section 147 of the Act, we hold that the judgment under appeal does not call for interference. - Decided against revenue.
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