TMI Blog2015 (10) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment. But later on as and when it came to the notice of the AO, he adopted the prescribed procedure under the law for reopening of case of the assessee and has rightly reopened the case of the assesee and completed the assessment under section 147 w.e.f. 143(3) of the Act vide order dated 30.11.2009. But the Ld. First Appellate Authority has not appreciated this version of the AO while cancelling the assessment made by the AO on 30.11.2009. In our considered opinion, Ld. First Appellate Authority has cancelled the order dated 30.11.2009 passed by the AO and held that the case of the assessee has been reopened by the AO on the basis of change of opinion, in view of the decision of the CIT vs. Kelvinator India Ltd. (2010 (1) TMI 11 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red on facts and in law in annulling the order u/s. 143(3)/147 of the I.T. Act while holding invalid the reopening u/s. 147, ignoring that also as per decision of Hon ble Supreme Court in CIT(A) vs. PVS Beadies Private Limited 237 ITR 13, the factual information provided by the internal auditor is to be treated as information for the purpose of reopening of assessment. Reliance is also placed on the following decisions:- i) Phoolchand Bajrang Lal vs. CIT (1993) 203 ITR 456 (SC) ii) Ram Prasad vs. ITO (1995) 82 Taxman 199 (All.) iii) Consolidated Photo and Finvest Limited vs. ACIT (2006) 281 ITR 394 (Del.) iv) KLM Royal Dutch Airlines vs. ADIT (2007) 292 ITR 49 (Del) v) ACIT vs. Rajesh Jhaveri Stock Brokers Pvt Ltd. (2007) 161 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assesse and the several cases laws stated that the contention of the assessee regarding reopening of the assessment on change of opinion and based on audit objection was rejected and decided the case on merit and assessed at income of ₹ 91,19,606/- vide his order 30.11.2009 passed under section 147 r.w.s. 143(3) of the I.T. Act, 1961. 4. Against the above order of the Assessing Officer, assessee appealed before the Ld. First Appellate Authority, who vide impugned order dated 2.7.2010 allowed the appeal of the assessee by holding as under vide Para no. 1.3 at page 2 and 3 of his order. 1.3 I have carefully considered the submissions of the Ld. AR and have gone through the assessment order. While explaining the reasons for reo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The Assessing Officer has no power to review; he has the power to reassess. But reassessment has to be based on fulfillment of certain precondition and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of change of opinion as an in-built test to check abuse of power by the Assessing Officer. Looking into the facts of the present, case, I find that the Assessing Officer was not justified in reopening the assessment u/s. 147 of the Act and the same is held to be void-ab-inito. Consequently, the order u/s. 143(3) read with section 147 stands annulled. 5. Against the above order of the Ld. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the Revenue meaning thereby the issue is debatable issues and the AO has reopened the assessment on the basis of change of opinion which is not permissible in view of the decision in the case of CIT vs. Kelvinator Ltd. (Supra). He further stated that the AO has reopened the reassessment without any fresh material on the record. There must be extraordinary material to reopen the assessment. 7. We have heard both the counsel and perused the records. It is an admitted fact that decision of the Hon ble Supreme Court in the case of Sourthern Switchgear Ltd. v. CIT 232 ITR 359 was very much available at the time of assessment. The decision of the Hon ble Supreme Court of India is a Law of Land in which it is clearly held that royalty expen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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