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TMI Blog2016 (3) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... 47/148 were invalid and thereby in quashing the assessment order. 2. Relying on the irrelevant decisions cited by the assessee and ignoring the specific and relevant decisions cited by the A.O. in her order. 3. Holding that all material facts have been disclosed for obtaining the benefits U/s 10AA. 4. For quashing assessment on legal ground and thereafter discussing it on merits as well." Grounds in Cross Objection "1. The ld CIT(A) is correct in law in holding that proceedings initiated U/s 147/148 in case were bad in law and consequently the impugned assessment order is invalid which decision is based on correct appreciation of law and on examination of material available on assessment record. 2. That the CIT(A) is justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption U/s 10AA of the Act. Accordingly, the ld Assessing Officer after recording the reasons in writing had issued notice U/s 148 of the Act on 30/3/2012. The assessee company in compliance to notice U/s 148 of the Act had filed return declaring income of Rs. 43,69,520/- on 24/4/2012. Copy of the reasons recorded were provided to the assessee. Thereafter the case was scrutinized U/s 143(3) of the Act. The assessee challenged the reopening U/s 147 of the Act before the Assessing Officer, which has been reproduced by him on page Nos. 3 to 11 of the assessment order. After considering the assessee's reply, the ld Assessing Officer has held that the assessee was not eligible for claim of deduction U/s 10AA of the Act as the assessee was do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. She also discussed the various other High Court's decision on this issue on page No. 5 of the appeal order. She also relied on the decision of Hon'ble Gujarat High Court in the case of M/s Ganesh Housing Corporation Ltd. Vs DCIT (2013) 350 ITR 131 (Guj) on suppression of material by the assessee and second opinion formed by the Assessing Officer without any tangible material to exercise jurisdiction. She further relied on the decision of Hon'ble Bombay High Court in the case of OHM Stock Brokers Pvt. Ltd. Vs CIT (2013) 351 ITR 443 (Bom) on reviewing the earlier order particularly when there was no failure on the part of the assessee to fully and truly disclosed material fact for the assessment. In this case, the Assessing Officer has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer takes a different view. A decision is right or wrong is none of the concern of the subsequent officer. (Refer Sita World Travel (India) Ltd. Vs. CIT (2005) 274 ITR 186). The Hon'ble Supreme Court in case of Kelvinator of India Ltd. (2010) 320 ITR 561 (SC) held that the concept of "change of opinion" on the part of the Assessing Officer to reopen an assessment does not stand obliterated after the substitution of section 147 of the Income-tax Act, 1961, by the Direct Tax Laws (Amendment) Acts, 1987 and 1989. After the amendment, the Assessing Officer has to have reason to believe that income has escaped assessment, but this does not imply that the Assessing Officer can reopen an assessment on mere change of opinion. The concept of "c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y forming a second opinion on the self - same materials without having any "tangible material" to exercise jurisdiction. The Ld. A.O. reopened assessment by issue of notice u/s 148 after 4 years from the end of relevant assessment year which is bad in law and therefore reliance is also placed on a recent judgment on similar facts by the Hon'ble Bombay High Court in case of OHM Stock Brokers Pvt. Ltd. V/s CIT (2013) 351 ITR 443 (Bom.) wherein the Hon'ble Court held that reassessment notice after 4 years in a case where the assessment had been completed u/s 143 (3) would tantamount to previewing the earlier order particularly when there was no failure on the part of the assessee to fully and truly disclose material facts for the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 10/12/2009 has considered all the purchases and sales of non-SEZ unit, SEZ unit and the fact of the Surat SEZ unit were also submitted by the assessee and considered by the Assessing Officer in his assessment. Thereafter on same facts and circumstances, he reopened the case U/s 147 even he did not have any tangible material with him on which he can form opinion on it. When in first scrutiny assessment, all the particulars of income had been disclosed by the assessee and all material fully and truly has been disclosed for the assessment. The Assessing Officer cannot review its own order on the basis of the same material and information. It is only change of opinion, which is not permitted under the law. The Hon'ble Supreme Court's de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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