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TMI Blog2013 (6) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal assessment in the case of assessee was completed under section 143(3) on 21.03.2006 on a income of Rs. 1,32,03,670/-, subsequently notice was issued under section 148 by recording the following reasons:- "The assessment was completed and order u/s 143(3) of the Act was passed on 30.11.2005. After going through the records, it is revealed that the calculation of deduction admissible u/s 80HHE of the IT Act, the assessee adopted the total turnover of the business as Rs. 1,63,58,001/- whereas the P &L account shows that the total turnover as Rs. 14,54,12,662/- (Sales gross + Services_. Adoption of incorrect total turnover resulted in excess allowance of deduction u/s 80HHE to the tune of Rs. 42,17,556/- entailing short levy of tax of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied on the decision of the Hon'ble Delhi High Court in the case of CIT vs. Kelvinator, (2002) 256 ITR 1 and on the decision of Delhi High Court in the case of Haryana Acrylic Manufacturing Company Vs. The Commissioner of Income Tax IV and Anr. (2009) 308 ITR 38 by observing as under:- "In view of the factual and legal position discussed above the reopening was not possible in the case of appellant after expiry of four years, in view of the proviso to section 147 of the IT Act. It is also held that reopening is based on change of opinion of the incumbent ASSESSING OFFICER, which is not permissible in law. Therefore the reopening in the case of appellant is declared invalid in the eyes of law and same is quashed. In my decision vide ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and until and unless the condition of proviso to section 147 of the IT Act is complied with and the assessment could not be reopened beyond four years. Reliance was also placed on the decision of Bombay High Court in the case of Hindustan Level Ltd. Vs. Pandey (V. K.), Joint CIT (2001) 251 ITR 209 (Bombay). It was pointed out that similar view have been taken by Bombay High Court as has been taken by Delhi High Court. Reliance was also placed on the decision of Hon'ble Delhi High Court in the case of Rose Serviced Apartments Pvt. Ltd. & Anr Vs. DCIT in writ petition (Civil) No. 5988/2008 order dated 25.01.2011 in which also similar reasons were recorded. 6. We asked the Ld. AR to show the specific finding given by the ld. CIT(A) in his or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 148 or there is failure on the part of the assessee to disclose fully and truly material facts necessary for his assessment. Such specific finding could have been given after giving the opportunity to the Assessing Officer. In the absence of such opportunity being given to the assessing officer, in our opinion the CIT(A) has acted against the principle of nature justice in reaching the conclusion that the reopening is barred by limitation. The clear cut finding of the CIT(A) is necessary. The assessee has taken the ground that the assessment has been made without issuing the notice under section 143(2) but the CIT(A) has not adjudicated this issue also. 8. In the interest of justice, we set aside the order of the CIT(A) and we res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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