TMI Blog2012 (3) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : In this appeal filed by the Revenue, it assails the order dated 5.10.2010 of Commissioner of Income Tax (Appeals)-V, Chennai, in which he held that reopening done for the impugned assessment year to be invalid, and deleted the adjustment done by the Assessing Officer by reworking the book profit, setting off brought forward depreciation/loss. 2. Short facts apropos are that assessee engaged in oil drilling, had filed return of income which was processed under Section 143(1) of Income-tax Act, 1961 (in short the Act ). Thereafter, the return was selected for scrutiny and the assessment completed under Section 143(3) of the Act on 3.3.2006. On 25.3.2008, a notice under Section 148 of the Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer having passed a speaking order without any fresh material on record, invoking Section 147 of the Act was uncalled for. Reliance was placed on the decision of Hon'ble Apex Court in the case of CIT v. Kelvinator of India Ltd. (320 ITR 561) which, according to him, upheld the decision of full Bench of Delhi High Court in the case of CIT v. Kelvinator of India Ltd. (256 ITR 1). Ld. CIT(Appeals) was appreciative of these contentions. According to him, Assessing Officer while doing assessment under Section 143(3) originally, was having all the material with regard to computation of book profit under Section 115JB of the Act and by reopening, he was only attempting to do a review of the assessment order. Ld. CIT(Appeals) held that a reopen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , assessee had not produced any evidence to indicate that the issue regarding calculation of book profit under Section 115JB MAT was ever considered in the original assessment proceedings. When there was no discussion on the issue in the assessment order and when no details were called for by the Assessing Officer during the course of original assessment proceedings, there was no opinion ever formed and hence, there could be no question of change of opinion. As per the D.R., there was no opinion formed by the Assessing Officer in the first place and therefore, decisions relied on by ld. CIT(Appeals) for holding that reassessment proceedings were initiated simply on change of opinion, was incorrect. According to learned D.R., clause (iii) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of a co-ordinate Bench of this Tribunal in the case of Lakshmi Machine Works Ltd. v. ACIT (126 ITD 343), he argued that incorrect computation of brought forward loss/depreciation for application of clause (iii) of Explanation 1 to Section 115JB was a relevant reason for reopening of the assessment within four years from the end of the assessment year and here, in this case, the reopening was well within the time-frame of four years. Reliance was also placed on the following decisions:- 1. Kalyanji Mavji Co. v. CIT (SC) 102 ITR 287 2. Ess Kay Engineering Co. (P) Ltd. v. CIT (SC) 247 ITR 818 3. Revathy C.P. Equipments Ltd. v. DCIT Ors. (Mad) 241 ITR 856 4. A.L.A. Firm v. CIT (Mad) 102 ITR 622 5. ITO v. Purushottam Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5JB was a relevant reason for reopening of assessment at that point of time. When the Tribunal was deciding the case of Lakshmi Machine Works Ltd. (supra), the decision of Hon'ble Apex Court in the case of Kelvinator of India Ltd. (supra) was not available. The decision of Hon'ble Apex Court in the case of Kelvinator of India Ltd. (supra) was dated 18th January, 2010, whereas, the co-ordinate Bench of this Tribunal gave its decision in the case of Lakshmi Machine Works Ltd. (supra) on 27th March, 2009. So, once Hon'ble Apex Court affirmed the decision of Full Bench of Delhi High Court in the case of Kelvinator of India Ltd. (supra), we have to decide the issue based on the law laid down by the Full Bench of Delhi High Court in the case of K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,154 38,29,000 Less: Refund determined as per order u/s 143(1) dt 16/03/04 38,29,000 NIL 8. Assessee having filed the details of the computation of book profit u/s.115JB and the Assessing Officer having himself prepared a computation and made it a part of assessment order, it will not be possible to say that there was no application of mind by the Assessing Officer. The reason why we can say so is clear from the decision of Hon'ble Delhi High Court in Kelvinator of India Ltd. s case. It is clearly mentioned therein that the Assessing Officer can be presumed to have applied his mind and formed an opinion, as per Section 114(e) of Evidence Act, even where no specific reference to the po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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