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TMI Blog2014 (7) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... se and in law, the ld. CIT(A) erred in conforming the additions made by AO of Rs. 8,35,000/- under the provisions of section 50C of the Act." 2. Ground No.1 is regarding validity of re-opening under section 147/148 of the Income tax Act. The original assessment was completed under section 143(3) on 30/12/2005 at a loss of Rs. 8,48,370/-. Subsequently, the AO issued notice under section 148 on 20th November, 2006 on the ground that the assessee sold a plot of land and shown sale consideration of Rs. 8.00 lacs as per Conveyance Deed dated 25/03/2003. However, the market value of the property determined by the Stamp Valuation Authority is Rs. 16,35,000/- as per receipt of the said authority dated 26/03/2000. The AO was of the view that as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Kelvinator of India Ltd. 187 Taxmann 312(SC)/320 ITR 561; 3. Asian Paints Ltd. vs. DCIT (308 ITR 195) (Bom.) and 4. Income Tax Officer vs. Haresh Chand Agarwal HUF -ITA No.282/Agra/2013 4. On the other hand the ld. DR has submitted that there was no enquiry in the original assessment order on the issue of computation of capital gain and particularly invoking of Section 50C of the Income tax Act. Therefore, the re-opening is not based on change of opinion as there was no opinion in the original assessment on this issue. He has relied on the orders of authorities below. 5. We have considered the rival submissions as well as relevant material on record. We have given our deep thought on the issue in the light of the decisions as relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompletion of the assessment under section 143(3) neither any material nor any new information came to the knowledge of the AO which could lead to the conclusion that the income assessable to tax has escaped assessment due to the reason of under -statement of sale consideration of property in question. Even in the reasons recorded or in the reassessment order the AO has not doubted the correctness of the actual sale consideration received by the assessee. The assessment was re-opened because in the original assessment the AO did not conduct any enquiry on the issue of applicability of provisions of Section 50C and adoption of the value of Stamp Valuation Authority as full value consideration. It is not the case of a bogus or absolutely illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed "verification of assessment record reveals that the said details were called for but inadvertently the same were not taken into account while framing the assessment and, therefore, it cannot be said that there is a change of opinion." According to respondent No. 1, thus, the relevant material was available on record, but he failed to apply his mind to that material in making the assessment order. The question is, can respondent No. 1 take recourse to the provision of section 147 for his own failure to apply his mind to the material which, according to him, is relevant and which was available on record. We find that this situation has been considered by the Full Bench of the Delhi High Court in its judgment in the case of CIT v. Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferred power on the Assessing Officer to review its own order. Therefore, the power under section 147 cannot be used to review the order. In the present case, though the Assessing Officer has used the phrase "reason to believe", admittedly between the date of the order of assessment sought to be reopened and the date of formation of opinion by the Assessing Officer, nothing new has happened, therefore, no new material has come on record, no new information has been received, it is merely a fresh application of mind by the same Assessing Officer to the same set of facts and the reason that has been given is that the some material which was available on record while assessment order was made was inadvertently excluded from consideration. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een placed by the assessee before the Assessing Officer at the time when the original assessment was made and the Assessing Officer applied his mind to that material and accepted the view canvassed by the assessee, then merely because he did not express this in the assessment order, that by itself would not give him a ground to conclude that income has escaped assessment and, therefore, the assessment needed to be reopened. On the other hand, if the Assessing Officer did not apply his mind and committed a lapse, there is no reason why the assessee should be made to suffer the consequences of that lapse. In so far as the present appeal is concerned, we find that the assessee had placed all the material before the Assessing Officer and where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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