TMI Blog2015 (2) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... UPREME COURT OF INDIA ] has held that jurisdiction to reopen an assessment is not jurisdiction to review the assessment order. The contention urged by the revenue that it was wrong application of law by the Assessing Officer while passing original assessment order does not detract from the fact that there was an opinion formed during the regular assessment proceedings. The Assessing Officer has to at the very outset satisfy the condition precedent under Section 147 and 148 of the Act before he can exercise the jurisdiction to reopen an assessment. In the present facts, the reopening notice is based on a change of opinion as all the grounds were admittedly a subject matter of inquiry during regular assessment proceedings. In view of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change of opinion, ignoring the detailed reasons given by the Assessing Officer which have endorsed by the CIT(A)? 3. The respondent assessee filed its return of income for the subject assessment year on 24 November 2003 declaring income of ₹ 311.82 Crores. The Assessing Officer completed the assessment by order dated 20 February 2006 under Section 143(3) of the Act determining the income at ₹ 337.30 Crores. 4. On 19 March 2008, the Assessing Officer issued a notice under Section 148 of the Act seeking to reopen the assessment for Assessment Year 2003-04. The reasons recorded in support of the impugned notice reads as under: In this case, the assessee has filed the return of income for A.Y. 2003-04 on 24.11.2003 declarin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e expenditure 4,40,85,941 Purchased/installed upto 30.9.02 1,23,91,210 Purchased/installed upto 30.9.02 3,16,94,731 Purchased/installed from 1.10.02 74,34,726 Depreciation at 60% on 1,23,91,210 95,08,419 Depreciation at 30% on 3,16,94,731 1,69,43,145 Income escaped the assessment 4408594116943145) 2,71,42,796 On perusal of the profit and loss account of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by the assessee for claiming the interest as deduction was that the interest was received as refund of 234B of the Act and the same was paid in the past as under: A.Y. 1993-94 42,16,122 A.Y. 2000-01 6,62,41,729 A.Y. 2001-02 93,33,004 Total 7,97,90,855 In the above assessment years, the payment of the above interest was not allowed and was added back to the income of the respective years. Therefore, when part of it was refunded as over charge of interest u/s. 234B of the Act refunded to us, they cannot be taxed. In view of the matter, this amount of ₹ 6,97,50,863 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .21 Crores. 6. On appeal, the Commissioner of Income Tax (Appeals) (the 'CIT(A)') by an order dated 12 March 2010 upheld the order of the Assessing Officer dated 20 November 2008 passed under Section 143 r/w Section 147 of the Act. On further appeal, the Tribunal by the impugned order allowed the respondent assessee's appeal interalia holding that all the three grounds which form the basis of the impugned notice were a subject matter of consideration leading to order dated 20 February 2006 in regular assessment proceedings. In particular the impugned order records as under: On perusal of assessment order, we observe that AO at the time of making original assessment dated 28.02.2006 considered the issues of allowing softwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order dated 20 February 2006 in regular assessment proceedings under Section 143(3) of the Act had taken an erroneous view. This according to the revenue would warrant a reopening notice under Section 148 of the Act. On the other hand, respondent assessee did attempt to point out to us from the assessment order that the grounds in support of the impugned notice were a subject matter of consideration in regular assessment proceedings. 8. We find that the impugned order of the Tribunal has recorded a finding of fact that all the issues which form the basis of the reopening notice, was a subject matter of consideration during the regular assessment proceedings. On the above facts the impugned order records that reconsideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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