TMI Blog2014 (4) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... e original assessment u/s 143(3) of the Act - these two issues were already examined and looked into by the A.O. who completed the original assessment order u/s. 143(3) of the Act. The belief formed by subsequent AO on these two issues was nothing but mere change of opinion – Relying upon Commissioner of Income Tax, Delhi Versus M/s. Kelvinator of India Limited [2010 (1) TMI 11 - SUPREME COURT OF INDIA] - the reopening on the basis of change of opinion is not permissible under the Act and Law - the notice of reassessment u/s 148 of the Act issued on 28.03.2008 was issued after the four year limitation time as stipulated in section 149(1)(a) of the Act - notice of reopening of assessment u/s 148 of the Act was also not sustainable and wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection agency cost and accreditation charges u/s 40(a)(i)(a) of the Act, testing and coordination expenses, marketing coordination expenses and disproportionate service fee. 4. Being aggrieved by the above reassessment order, the assessee preferred an appeal before the Commissioner of Income Tax(A) which was allowed by holding that the reopening of assessment and the reassessment order based on such reopening was bad in law and reopening based on change of opinion was not permissible under the Act in law. The Commissioner of Income Tax(A) set aside/quashed the order of reopening of assessment without going into the merits of the case. Now, the aggrieved revenue is before this Tribunal with the sole ground as mentioned hereinabove. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is being reproduced below for the sake of clarity in our findings:- 2.3 I have considered the facts of the case. As per facts discussed above, the already completed assessment was reopened u / s. 147/ 148 of the Act on the basis of only two issues i.e. testing and coordination charges and third party inspection charges accreditation charges which were paid to parties outside India. As per provisions of sec. 147, a completed assessment can be reopened if the A.O. has reason to believe that any income chargeable to tax has escaped assessment. Thus for reopening the assessment the A.O. should have some reason, such reason should be bonafide and sufficient to make a belief and the reasons should be based on some information/m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing information was asked for by A.O. from the appellant:- . 9. Under the head 'operating cost', please provide details of payments made for testing and coordination charges above RS.1 lakhs and third party inspection agency cost plus accreditation charges above Rs. 5 lakhs. Brief note on the exact nature of the services may also be provided. Comparative statements for the earlier years may also be provided. 10. Also provide the details of expenses incurred on:- (i) --- (ii) --- (vi) Marketing expenses (x) ----- Thus the appellant's claim appears to be correct that during original assessment proceedings the A.O. asked for the details of these two expenses for which all details were provided during ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .O. These two issues were already examined and looked into by the A.O. who completed the original assessment order u/s. 143(3) of the Act and therefore, the belief formed by subsequent A.O. on these two issues was nothing but mere change of opinion. As discussed above and in view of the number of decisions on these issues including the decision of Supreme Court in the case of Kelvinator of India Ltd., the reopening on the basis of change of opinion is not permissible under the Act and Law. In the facts and circumstances, it is held that the reopening was not in accordance with the provisions of sec. 147 of the Act and law on this issue. The reopening is therefore, held to be bad in law and is therefore set aside. Consequently, the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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