TMI Blog2015 (6) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... come and unearthed income, had arrived at the total income. Thereafter, if he had a reason to believe the said assessment can be re-assessed u/s.148 of the Income Tax Act as discussed in the earlier paras so as to reopen the assessment, there should be sufficient materials. There is no arbitrary power to the Assessing Officer to reopen on the basis of change of opinion. In the present case we have gone through the reasons for reopening of assessment. It cannot be proper reason to reopening. The Assessing Officer has no power to review his own order. The re-assessment has to be made on fulfillment of certain free condition and if the concept stating ‘'change of opinion" is removed in the graph of re-assessment or/of assessment, redo take place. Once again treat the concept of change of opinion inbuilt test to check to abusive power by Assessing Officer. Hence, the Assessing Officer has power to reopen, provided there is ‘tangible material" to come to the conclusion that there is escapement of income from assessment. The reason must have live link with the foundation of belief. In the present case, the Assessing Officer considered seized material No.136 in annexue NSK/B & D/S date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to appreciate that the contents of the seized material were not fully explained by the assessee in their reply at the time of original assessment and therefore the then Assessing Officer has not fully examined the seized material in the original assessment order. 4. The CIT(A) erred in holding that the period available for re-opening the assessment was only 4 years while the sec. 147 r.w.s. 149(1)(b) provides a time limit of 6 years from the end of the assessment year as is the case in the re-opening. 2. Since the issue raised in the Cross-objection is against the root of the matter which is being legal issue, first we take up Cross objection for adjudication. 3. The brief facts of the case are that there was a search in the case of the assessee and assessment u/s. 153A r.w.s.143(3) of the Income-tax Act, 1961 was completed on 31.12.2009 determining income of ₹ 34,16,452/-. Subsequently, notice was issued u/s. 148 of the Income-tax Act on 29.03.2012. In response to this notice a return of income was filed vide letter dated 21.11.2012. The assessee stated before the Assessing Officer that return originally filed on 20.11.2006 may be treated as return in response to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reopening and the addition made to the income of the appellant in the reassessment made by the Assessing Officer is based on the same seized material that was considered by him in the original assessment made under section 153A read with section 143(3) which amounts to change of opinion. In view of the facts of the case, as discussed above, the reopening of the assessment based on the same material that had already been considered by the Assessing Officer in the original assessment made under section 153A read with section 143(3) is held to be not valid and thus the addition made during the course of the same is also directed to be deleted. Since, I have decided the issue on the legal ground raised by the appellant, therefore, I do not consider it necessary to discuss the other grounds raised by the appellant on the merits of the additions made. In the result, the appeal is allowed . 5. Against this findings of the CIT(A), the Revenue is in appeal before us. In Cross-objection the assessee challenged the issue of notice u/s.148 of the Income Tax Act in respect of assessment completed u/s. 153A of the Income-tax Act. 6. The ld. counsel for the assessee supported the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order dated 31.12.2009 u/s. 153A r.w.s. 143(3) of the Act, determining the income at ₹ 58,79,492/-. The Assessing Officer noticed that as per seized document No.136 in annexure NSK/B D/S, dated 20.02.2008, the value of property situated at survey No.176/02, Nolambur is worked out at ₹ 1,18,73,840/- and other property as per seized document No.136 annexure NSK/B D/S, dated 20.02.2008, situated at New survey No.72, at Nolambur vide sale deed No.2653 dated 23.05.2005 valued at ₹ 62,54,100/-. Thus total value worked out at ₹ 1,81,27,940/-. However, the assessee disclosed the value of the property at ₹ 1,56,65,000/-. Hence, the Assessing Officer issued noticed u/s.148 so as to reopen the assessment to bring the balance amount of ₹ 24,62,840/- to tax and thereafter he completed assessment u/s. 153A r.w.s 143(3) r.w.s. 147 of the Act. 10. The contention of the Authorised Representative is that when the assessment was completed u/s. 153A r.w.s 143(3,) it cannot be subjected to reopen assessment u/s. 147 of the Income-tax Act so as to issue 148 notice of the Act. In our opinion there is no merit in the argument of the assessee's counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of belief by the Assessing Officer is within the realm of subjective satisfaction. 12. The scope and effect of Section 147 as substituted with effect from April 1, 1989, as also Sections 148 to 152 are substantially different from the provisions as they stood prior to such substitution. Under the old provisions of Section 147, separate Clauses (a) and (b) laid down the circumstances under which income escaping assessment for the past assessment years could be assessed or reassessed. To confer jurisdiction under Section 147(a) two conditions were required to be satisfied firstly the Assessing Officer must have reason to believe that income profits or gains chargeable to income tax have escaped assessment, and secondly he must also have reason to believe that such escapement has occurred by reason of either (i) omission or failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment of that year. Both these conditions were conditions precedent to be satisfied before the Assessing Officer could have jurisdiction to issue notice under Section 148 read with Section 147(a). But under the substituted Section 147 existence of only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act and accordingly the Assessing Officer was not justified in issuing notices u/s. 148 and in completing the assessments u/s.143(3) read with section 147 of the Act on October 31, 2006. The Assessing Officer instead of complying with the requirement of section 153A proceeded with the provisions of sections 147 and 148 which were not applicable in the assessment under section 153A of the Act. Therefore, the assessments completed u/s.143(3) read with section 147 of the Act were wholly without jurisdiction and liable to be quashed. 15. Thus, we are completely in agreement with the findings of the Tribunal cited supra that after search and seizure under section 132, the Assessing Officer shall proceed under section 153A of the Act and he cannot proceed u/s.148 of the Act. There is no bar on reopening all the assessments which was completed u/s. 153 A r.w.s. 143(3) of the Income-tax Act, if there is reason to believe that income escaped from the assessment. 16. Accordingly, we are inclined to dismiss this ground raised by the assessee. 17. The second issue in Cross-objection is with regard to fact that assessment is only change of opinion. 18. The ld. counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew his own order. The re-assessment has to be made on fulfillment of certain free condition and if the concept stating 'change of opinion is removed in the graph of re-assessment or/of assessment, redo take place. Once again treat the concept of change of opinion inbuilt test to check to abusive power by Assessing Officer. Hence, the Assessing Officer has power to reopen, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. The reason must have live link with the foundation of belief. In the present case, the Assessing Officer considered seized material No.136 in annexue NSK/B D/S dated 20.02.2008 and also seized material document NSK/B D/S dated 20.02.2008 while framing original assessment and arrived the value of property at ₹ 1,56,65,000/-. Thereafter, the Assessing Officer considered the same seized material to arrive the value of sale property at ₹ 1,81,27,940/- which is not possible. Hence, in our opinion, the reassessment is only on change of opinion which cannot be permitted. 21. Accordingly, in our opinion, the Commissioner of Income Tax (Appeals) has taken correct view in annulling of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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