TMI Blog2014 (1) TMI 1494X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Mr. Justice S. Ravindra Bhat: (Open Court) The assessee by way of this appeal impugns the order of the Income Tax Appellate Tribunal (ITAT) dated 09.09.2011. The impugned order dismissed the appeal preferred by the assessee. 2. The brief facts of the case are that the appellant, a statutory corporation, claimed the benefit of Section 10(29) contending that its income was exempted from taxation as it carried on warehousing and storage activity. The original assessment for AY 1995-96 was made on 22.01.1998. The assessee s contentions were accepted in respect of a portion of its income which was held to be exempted under Section 10(29) of the Income Tax Act, 1961. At that time the prevailing law had been declared by the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 143(3) of the Act. Therefore, the argument of the assessee that it was a case of change of opinion has not been addressed at all by the Tribunal which should have been gone into when it was so specifically raised by the assessee. For this reason alone, we set aside the order of the Tribunal and remit the case back to the Tribunal for fresh consideration limiting its discussion only on the aspect as to whether the reason given by the Assessing Officer for reopening of the reassessment was the aspect considered earlier in the original assessment proceedings and it would be a case of mere change of opinion or this aspect was not considered at all and, therefore, provided proper ground for reopening the assessment. 34. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court delivered its judgment in the case of Orissa State Warehousing Corporation (supra) on 01.04.1999. The original assessment orders for A.Y. 1995-96 1996-97 were framed by the AO dates mentioned above, prior to the pronouncement of the judgment of the Hon ble Supreme Court. With the Hon ble Supreme Courts decision it was incumbent on AO to examine whether the claim allowed by him u/s 10(29) during the original assessment proceedings was in conformity with the same. We are unable to accept the proposition advanced by the learned counsel that AO had already exercised his opinion in respect of the matter which is subsequently decided by the Hon ble Supreme Court was going to hold in Orissa State Warehousing Corporation (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand. Though in the earlier portion of the impugned order the Tribunal extracted this Court s directions which specifically require the Tribunal to go into the question as to whether the reasons to believe under Section 147/ 148 in this case were based upon mere change of opinion, no opinion has been recorded or arrived at; the order ex facie discloses complete non-application of mind to the directions of this Court, resulting in a remand to ensure application of mind to the assessee s contention in this regard. This Court is also mindful of the circumstance that the question whether the reasons to believe constitute a change of opinion is essentially for discussion in every case of where the assessee challenges the notice under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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