TMI Blog2015 (6) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... e of ICICI Home Finance Ltd. (2012 (8) TMI 312 - BOMBAY HIGH COURT), therefore, following the judgment above as well as in the case of Asian Paints Ltd. (2008 (7) TMI 237 - BOMBAY HIGH COURT), we hold that the A.O. has reopened the assessment without any application of mind and accordingly the reopening is not sustainable in law. Hence, we quash the reassessment for both the assessment years. - Decided in favour of assesse. - I .T.A. No.3132 & 3133/Mum/2012, I .T.A. No.3814/Mum/2012 - - - Dated:- 26-3-2015 - Shri Vijay Pal Rao And Shri N.K. Billaiya JJ. Dr. Firuza Rajesh Parikh Others Versus Income Tax Officer Others For the Appellant : Shri Vijay Mehta Shri Priyesh Vira For the Respondent : Shri Sachidanand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the ld. CIT(A). The ld. CIT(A) rejected the objection raised by the A.O. and confirmed the reopening of assessment. 5. Before us, the ld. A.R. has submitted that the reopening is based on audit objection and the A.O. has not formed any opinion that the income assessable to tax has escaped assessment. He has referred to the audit objection at page 3-4 of the paper book as well as reasons recorded by the A.O. at page 2 of the paper book and submitted that the reasons recorded by the A.O. for reopening of the assessment is verbatim copy of the audit objection and there is no application of mind and no independent opinion on behalf of the A.O. to believe that income assessed to tax has escaped assessment. He has further contended that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also perused the relevant material placed on record. There is no dispute that the original assessment for both the years was completed u/s 143(3) of the Act. Subsequently the A.O. has reopened the assessment by recording the reasons as under:- 1. The assessee has paid rent of ₹ 1.43,029/~ though she runs the clinic at her residence. 2. The assessee owns two flats, but no notional income is offered from the flat other than SOP. 3. Assistant expenses are shown as ₹ 2,27,0001- In the exp. Statement but as per the details submitted it has been shown as ₹ 2,75,000/-. 4. Assessee has offered no income from the clinic but expenses of ₹ 63,93,655/- is debited. It is seen that assessee has incurred expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond mistake in the last sentence is assessee takes private treatment which ought to have been assessee gives private treatment . This goes to prove that the A.O. had not even read out the audit objection properly but blindly reproduced the audit objection as reasons for reopening the assessment. There is no quarrel on the point that the internal audit party is entitled to point out factual error in the assessment and reopening on the basis of factual error pointed out by internal audit party is permissible as held by the Hon ble Supreme Court in the case of P.V.S. Beedies Ltd. (supra). But in the case of the assessee, the audit party has not pointed out merely the factual error or omission but has given the finding in the shape of opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. This will, in our opinion, amount to opening of the assessment merely because there is change of opinion. The Full Bench of the Delhi High Court in its judgment in the case of Kelvinator [2002] 256 ITR 1 referred to above, has taken a clear view that reopening of assessment under section 147 merely because there is a change of opinion cannot be allowed. In our opinion, therefore, in, the present case also, it was not permissible for respondent No. 1 to issue notice under section 148. 10. Thus it is the pre-requisite for the A.O. to form opinion based on som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it report but merely upon an opinion and the existing material already on record. This itself indicates that there was no independent application of mind by the Assessing Officer before he issued the impugned notice. On this ground alone, the assumption of jurisdiction by the Assessing Officer can be faulted. x x x ..x x ..x 9. Therefore, in view of the above, we are of the view that the impugned notice is without jurisdiction and the impugned order dealing with the objection of the Petitioner is non speaking order in as much as it does not deal with any of the objections raised by the Petitioner in its objections. 10. In the circumstances, the impugned notice dated 24-03-2011 issued under section 148 of the Act as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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