TMI Blog2010 (4) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER PER A.L. GEHLOT, A.M.: This appeal filed by the assessee is directed against the order of CIT(A)-II, Mumbai, passed on 06.08.2007 for the assessment year 2001-02. 2. Ground No. 1 is in respect of challenging reopening of assessment u/s 147 of the Act. Grounds No 2 and 3 are on merit related to reduction of profit under section 80IB while computing deduction under section 80HHC of the Act and calculation of deduction under section 80HHC in respect of DEPB respectively. 3. First we take up the legal ground challenging reopening of assessment u/s 147 of the Act. The CIT(A) rejected this legal ground of the assessee on the ground that the reopening is within four years. He further observed that after the amended provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or re compute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) : Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excessive loss, deduction, allowance or relief in the return ; (c) where an assessment has been made, but (i) income chargeable to tax has been underassessed ; or (ii) such income has been assessed at too low a rate ; or (iii) such income has been made the subject of excessive relief under this Act ; or (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed.] 7.1 On plain reading of above section we noticed that one of the conditions which must be satisfied before the AO can assume jurisdiction under section 147 of the Act that, he must have reason to believe that the income of the assessee has escaped assessment. If this condition is not fulfilled, the notice issued by the AO wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fishy inquires. The Assessing Officer cannot support the reopening of the assessment by collecting the material or by making inquiry subsequently after the date of initiation of the proceedings. Thus, the reopening of the assessment is to be seen on the date when the Assessing Officer initiated action u/s 147 of the Act. 7.3 We are also of the opinion that, howsoever widen the scope of taking action under section 148 of the Act, it does not confer jurisdiction on change of opinion on the interpretation of a particular provision earlier adopted by the assessing authority. For coming to the conclusion whether there has been excessive loss or depreciation allowance or there has been underassessment or assessment at a lower rate or for applyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are about the primary facts, viz., the claim made by the assessee, the circumstances under which the claim was made, and the provisions of law which could be applied while granting the benefits, and the Assessing Officer consciously considered the facts and arrived at a decision, the assessment cannot be reopened merely because subsequently the Assessing Officer changes his opinion or some other officer takes a different view. A decision is right or wrong is none of the concern of the subsequent officer. If the primary facts were not available or there was concealment or there was no application of mind at all, then a case for reopening the assessment could be made out . 7.4 If we consider the facts of the case under consideration we fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e his opinion or to hold an opinion different from that of his predecessor on the same set of facts. The Hon ble Supreme Court and the Apex Court in the case of M/s Kelivinator India Ltd. cited supra has rejected the revenue s appeal by observing as under:- Our view gets support from the changes made to section 147 of the Ac, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, Parliament not only deleted the words reason to believe but also inserted the word opinion in section 147 of the Act. However, on receipt of representations from the Companies against omission of the words reason to believe , Parliament re-introduced the said expression and deleted the word opinion on the ground that it would vest arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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