TMI Blog2002 (10) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... oid. 2. The assessee, a Development Officer in Life Insurance Corporation of India, has filed return of income for the assessment year 1993-94 at Rs. 92,900 on 4-10-1993. In the return of income the assessee had claimed deduction of 40% from incentive bonus received by him as commission as he is working as Development Officer in Life Insurance Corporation of India. The return of income was processed under section 143(1)( a ) of the Act. Subsequently the AO noted that the deduction of 40% out of incentive bonus and deduction out of additional conveyance allowance allowed to the assessee was not in accordance with law. He therefore issued a notice under section 148 of the Act as the income of the assessee has escaped assessment. 3. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Act and relied upon the decision of 235 ITR 698 , 117 ITR 1 , 152 ITR 163 , 122 ITR 451. The assessee has challenged the above finding of the CIT(A). While challenging the issue of notice under section 148, the Ld. counsel of the assessee argued before us that the issue is covered by the decision of Hon ble Jurisdictional Bench of the ITAT reported in [1999] 70 ITD 539 (Jab.) in case of S.N. Mishra v. ITO . He argued that as the notice does not disclose any reason for presuming jurisdiction under section 148 was illegal and any additions on the basis of such notice was illegal. The Ld. counsel also stated that no notice under section 148 could be issued on the basis of change of opinion. The assumption of jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the second one is the escapement of income. In his order to assumption jurisdiction under section 148, both the conditions have to be satisfied. The word reason to believe will be satisfied if there was a prima facie belief. But a belief though justified for the purposes of initiation of proceedings under section 147 may ultimately stand altered after hearing and reaching the final conclusion on the basis of intervening enquiries. The formation of belief is not a judicial decision but an administrative decision but does not mean that the AO has unfettered power in assuming such jurisdiction where the AO has formed the opinion that there was no escapement of income and nothing new has happened or there is no change of law, no infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position, it could result in placing in restricting powers of review in the hands of assessing authorities depending on their changing more. These observations were made by the Hon ble Delhi High Court in the case of Jindal Photo Films relying on the decision of Hon ble Supreme Court in the case of CIT v. Rao Thakur Narayan Singh reported in [1995] 56 ITR 234 . Similarly, the expression "escaping assessment clearly cannotes a very basic postulate that the income for a particular assessment year has escaped assessment. Once, on the same set of facts, a view has been taken by the AO, no different decision can be taken unless the fresh set of facts have come to the knowledge of the AO. 7. Keeping in view the ratios laid down by vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase also, the deduction out of incentive bonus was allowed by the AO. Subsequently, the AO reopened the assessment on the ground that there was escapement of income to the extent of expenditure allowed by him. The Tribunal held that assumption of jurisdiction under section 148 was not justified. 8. As the issue was covered by the decision of the jurisdiction High Court we hold that the assumption of jurisdiction under section 148 of the Act was not justified and, therefore, the order passed by the AO is annulled. Consequently, the order of the CIT(A) is also cancelled. 9. Similar is the fact in the assessment year 1993-94, we hold that the assumption of jurisdiction by the AO was illegal and the assessment order passed in consequenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance under section 143(1)( a ) was very limited. Hon ble Bombay High Court in the case of Khatau Junkar Ltd. v. K.S. Pathania reported in [1992] 196 ITR 55 and in the case of Tanna Exports reported in 202 ITR 219 as well as Hon ble Delhi High Court in the case of SRF Charitable Trust v. UOI reported in [1992] 193 ITR 95 have held that where possible two opinions, no prima facie disallowance under section 143(1)( a ) was permissible. Respectfully following the same, we hold that the CIT(A) has rightly deleted the addition made by the AO. While upholding the findings, we dismiss the grounds of appeal raised by the revenue. 16. In the result, appeal directed by the revenue is dismissed. 17. Now, we will take up the cros ..... X X X X Extracts X X X X X X X X Extracts X X X X
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