TMI Blog2016 (3) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 decision in the case of CIT Vs. Kelvinator India Ltd. (2010 (1) TMI 11 - SUPREME COURT OF INDIA ) is squarely applicable. The ld DR had not controverted the finding given by the ld CIT(A) and the submissions made by the assessee before the lower authorities. Therefore, we uphold the order of the ld CIT(A). When the matter has been decided by this Bench on technical ground, we have not decided the revenue’s appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der as invalid in law that entire income assessed in impugned assessment U/s 147/148 was exempt U/s 10AA of IT Act, 1961 by following the appeal order and order of Hon ble Bench in the case of assessee for A.Y. 2008-09 on the same issue. 2. The assessee firm is engaged in the business of trading and manufacturing of precious and semi precious stones,. Diamond and studded gold jewellery. The assessee firm filed its return on 21/10/2007 declaring income of ₹ 35,73,020/-. The assessment U/s 143(3) of the Income Tax Act, 1961 (in short the Act) was completed by the Assessing Officer on 10/12/2009 at ₹ 43,69,520/-. The ld Assessing Officer observed that the assessee had claimed exemption of ₹ 2,55,79,596/- U/s 10AA. He no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed deduction U/s 10AA of the Act at ₹ 2,55,79,596/-. Alternatively, he also apportioned the expenses between the SEZ unit and non-SEZ unit on account of Director s remuneration. 3. All the grounds of the revenue s appeal are against quashing the reopening proceeding by the ld CIT(A) on the ground of change of opinion whereas the assessee s C.O. in support of the order of the ld CIT(A). In appeal, the ld CIT(A) had thoroughly examined the issue of reopening U/s 147 and held that original assessment was passed U/s 143(3) of the Act on 10/12/2009. The ld Assessing Officer considered the claim of exemption U/s 10AA made by the appellant while passing the order U/s 143(3) of the Act. He verified the sale and purchase, details of wages a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed deduction in scrutiny assessment by forming opinion, therefore, reopening by the Assessing Officer is review of the previous order, which is not permitted under the law. Accordingly she quashed the reopening proceeding. 4. Now the revenue is in appeal and assessee in C.O. before us. The ld DR has vehemently supported the order of the Assessing Officer and argued that SEZ unit of Surat was involved in importing and exporting the diamond and was doing trading activity. These facts had not been considered by the Assessing Officer and also had not disclosed by the assessee, therefore, reopening was justified. 5. At the outset, the ld AR of the assessee has reiterated the arguments made before the ld CIT(A). He has further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he abuse of power. In a recent judgment by full Bench of Delhi High Court in case of CIT Vs. Usha International Ltd. (2012) 348 ITR 485 the court held that the expression change of opinion postulates formation of opinion and then a change thereof. In the context of section 147 it implies that the Assessing Officer should have formed an opinion at the first instance, i.e. in the proceedings under section 143(3) and now by initiation of the reassessment proceeding, the Assessing Officer proposes or wants to take a different view. The same view was held by Delhi High Court in CIT Vs. Eicher Ltd. (2007) 297 ITR 310 (Del). In a recent judgment the Hon'ble Gujarat High Court has adjudicated on similar facts in the case of M/s Ganesh Housing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings will be invalid in case the assessment order itself records that the issue was raised and is decided in favour of the assessee. Reassessment proceedings in the said cases will be hit by principle of change of opinion . Reassessment proceedings will be invalid in case an issue or query is raised and answered by the assessee in original assessment proceedings but thereafter the Assessing Officer does not make any addition in the assessment order. In such situations it should be accepted that the issue was examined but the Assessing Officer did not find any ground or reason to make addition or reject the stand of the assessee. He forms an opinion. The reassessment will be invalid because the Assessing Officer had formed an opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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