TMI Blog2011 (7) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or any other agency, the Assessing Officer will be justified in revising the assessment within the period of limitation provided therein. - Decided against Assessee. - IT Appeal No. 1478 of 2009 - - - Dated:- 5-7-2011 - C.N. Ramachandran Nair and P.S. Gopinathan, JJ. P.K.R. Menon and Jose Joseph for the Appellant. Anil D. Nair, J.R. Prem Navaz, Smt. Nivedita A. Kamath and P.A. Abish for the Respondent. JUDGMENT Ramachandran Nair, J. The question raised in the appeal filed by the Revenue is whether the Tribunal was justified in sustaining the order of the CIT (Appeals) cancelling the reassessment completed on the respondent assessee for the assessment year 1995-96 as invalid. 2. We have heard learned Senior c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Officer without considering the liability for tax under Section 45(2), following the two decisions of the Gujarat High Court in VXL India Ltd. v. Asstt. CIT [1995] 215 ITR 295/83 Taxman 582 and in Garden Silk Mills (P.) Ltd. v. Dy. CIT [1999] 237 ITR 668/106 Taxman 620 held that reassessments as a result of change of opinion of the Assessing Officer and therefore it is not sustainable. On the second appeal filed by the Revenue, the Tribunal sustained the order of the CIT (Appeals) against which the Revenue has come up with this appeal. 4. The short question that arises for our consideration is whether reassessment completed under Section 147 is not tenable as held by the CIT (Appeals) and confirmed by the Tribunal. In order to conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich resulted in huge profit to the assessee was assessable to tax under Section 45(2) for the previous year relevant for the assessment year in which the land was sold. Admittedly, the land in pieces were sold in the course of three assessment years 1993-94, 1994-95 and 1995-96. By virtue of the operation of Section 45(2), the Assessing Officer should have charged taxable capital gains under Section 45(2) in respect of the land sold in each of the assessment years. However, assessments for 1993-94 1994-95 are not seen reopened probably on account of limitation. When objection was raised by the audit party, the Assessing Officer reopened the assessment for the assessment year 1995-96, the previous year of which main portion of the land wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that entire facts were on record while the Assessing Officer completed regular assessment and so much so assessee is not guilty of any suppression of material facts in the returns filed or in the profit and loss account furnished along with the same. Further contention raised by the assessee's counsel is that the Assessing Officer acted merely based on the opinion of the audit party and he had not any reason of his own to believe that income chargeable to tax has escaped assessment. 7. After hearing both sides we are unable to sustain the order of the CIT (Appeals) confirmed by the Tribunal for the simple reason that their assumption that the reassessment is as a result of change of opinion by the Assessing Officer is factually incorrect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not been assessed or assessment is made at too low a rate or if the income has been made subject to excessive relief under this Act. All these situations go to establish that reassessment can be made under Section 147 if the Assessing Officer himself has committed a mistake or omission in the assessment completed by him. What the statute visualises is reconsideration and revision of regular assessment by the Assessing Officer himself if he finds that for any reason there is escapement of income chargeable to tax in the original assessment, in our view the amended provisions of Section 147 considered by the Honourable Supreme Court in the decision referred above, is sufficiently elastic to cover all cases of non-assessment or under assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Assessing Officer. So long as income chargeable to tax has escaped assessment and the Assessing Officer has reason to believe so, whether suo motu found by him from records or whether brought to his notice by the audit party or any other agency, the Assessing Officer will be justified in revising the assessment within the period of limitation provided therein. The fact that entire facts were on record and the assessee is not engaged in suppression has relevance only if reassessment is initiated beyond 4 years provided under the Section, which is not the case here. If reassessment was not made within four years, it would have been invalid on this ground raised by assessee's counsel. In view of the above findings, we allow the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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