TMI Blog2012 (9) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 (in short 'the Act'). 2. In this appeal, the assessee has raised the following Grounds of Appeal: 1. The order passed u/s 250(6) of the Income- tax Act, 1961 by the ld. CIT(A) Ludhiana is against law and facts in the file in as much he was not justified to uphold the action of the ld. AO in initiating the proceeding u/s 148. 2. That the ld. CIT(A) was further not justified to uphold the action of the ld. AO in al lowing deduction u/s 80HHC after reducing the claim of deduction u/s 80IA. 3. The brief facts of the case are that the assessee filed return of income declaring an income of Rs.30,16,250/- for the assessment year in question. The same was processed u/s 143(1) of the Act. Subsequently, the case was reopened to disallow claim of deduction u/s 80IB, on export profit and re-assessment was completed at net taxable income of Rs.73,96,316/-. Later on, the AO observed that deduction u/s 80HHC of the Act was allowed to the assessee, without reducing deduction amounting to Rs.44,74,078/-, allowed u/s 80IB of the Act, from the eligible profit. Thus, deduction of Rs. 30,22,388/- was allowed in excess. Accordingly, the AO again invoked the provisions of Section 147 r.w. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be computed, after reducing the deduction u/s 81B of the Act, which comes to Rs.2,05,31,622/-. The assessment was framed, on 24.11.2009, against which, appeal fi led with the CIT(A), which was dismissed by the CIT(A) vide order dated 23.12.2000. This order is under appeal before us. The factual details are furnished by the ld. 'AR' in the form of chart at page I of the Paper Book, duly supported by other relevant documents. 4 (i) Ld. 'AR' further stated that for the second time, provisions of Section 148 were invoked, after four years and hence, the case falls under proviso to Section 147 of the Act. It was, further, argued that the assessee has disclosed full and true particulars, in the return of income. Therefore, the AO is not competent to issue notice, second time, u/s 148 of the Act, in view of the proviso to Section 147 of the Act. Ld. 'AR' placed reliance on the decision, as reported in the case of CIT V Bear Shoes (India) (P) Ltd. (2010) 45 DTR 181 (Mad). Ld. 'AR' also placed reliance on the decision in the case of CIT V Kelvinator of India (2010) 320 ITR 561 (S.C) and in the case of ICICI Prudential Life Insurance Co. Ltd. V Asstt. CIT another, 325 ITR 471. Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t imply that the AO can reopen an assessment on mere change of opinion. The concept of change of opinion must be treated as an in-built test to check the abuse of power. Hence after April 1, 1989, the AO has power to reopen an assessment, provided there is tangible material to come to the conclusion that there was escapement of income from assessment. Reason must have a link with the formation the belief . Decisions of the Delhi High Court in CIT V Kelvinator of India Ltd. (2002) 256 ITR 1 (FB) and CIT v. Eicher Ltd. (2007) 294 ITR 310 affirmed). 2. Mepco Industries Ltd. V CIT another Rectification of mistake-Power subsidy received by assessee-Commissioner originally holding not taxable on ground that it was a capital receipt- Subsequent rectification on ground that Supreme Court had decided that subsidy received after commencement of production was a revenue receipt-Rectification made only on basis of change of opinion-Not permissible- Income- tax Act,1961, s. 154) .Deva Metal Powders P.Ltd. V Commissioner, Trade Tax (2007) 10 VST 751 (2008) 2 SCC 439 (S.C) and Commissioner of Central Excise Calcutta v. A.S.C.U. Ltd. (2003) 151 ELT 481 (S.C) relied on. 3. ITAT Jodhpur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have quoted above the questionnaire and the reply furnished by the assessee. The quest ion of deduct ions under Section 80IA and 80HHC were specifically examined at the time of original assessment proceedings. The respondent assessee had justified the claim and furnished documentary evidence or proof. The quantification of the claim was justified This is a case of change of opinion and this is not permissible as held in CIT v. Kelvinator of India (2010) 320 ITR 561 (SC) and Kelvinator of India v. CIT (2002) 256 ITR 1 (DEL) . The opinion of the Assessing Officer may have been legally erroneous but this cannot be a ground for initiation of re-assessment proceedings. An erroneous decision which is prejudicial to the Revenue can be revised but the said opt ion was not exercised. 8. The assessee appellant has disclosed al l the material and relevant particulars, within the meaning of the proviso to Section 147 of the Act, in respect of claim u/s 80IA and 80HHC of the Act. The AO invoked the provisions of Section 147 read with Section 148 of the Act, twice and is expected, being quasi-judicial authority, to adjudicate the issue on the basis of relevant material available on record a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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