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TMI Blog2016 (3) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. "Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in annulling the reopening of assessment u/s 115WG of the I.T. Act without appreciating the fact that there was no change of pinion and the AO had the reason to believe that value of fringe benefits to the tune of Rs. 2,66,000/- had escaped assessment resulting into short levy of tax." 2. "The appellant prays that the order of the CIT(A) on the above ground be set aside and that of the Assessing Officer be restored." 2. The only issue raised in the ground no.1 is against the annulling the reopening of assessment u/s 115WG of the IT Act on the ground of change of opinion by ignoring the reason to believe that value of fringe benefits o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 2,66,000/- has escaped assessment, resulting into short levy of tax. Therefore, the assessee's case is hereby reopened for reassessment u/s 115WG of the I.T. Act, 1961 for A.Y.2006- 07." 3. The AO rejected the submissions of the assessee which is incorporated at para 04 of the assessment order and the assessment was framed u/s 115WE(3) r.w.s. 115WG of the I.T. Act vide order dated 30.03.2011 by adding contribution towards superannuation fund of Rs. 2,66,000/- thereby determining the value of fringe benefits at Rs. 16,76,695/-. 4. The ld. CIT(A) allowed the appeal of the assessee by holding as under: 4.4 Having considered the AO's order as well as the appellant AR's submission, I find that the reopening of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justify a review of the assessment order already passed. The Supreme Court in the matter of the Commissioner of Income tax v. Kelvinator (India) Ltd., reported in 320 ITR Page 561 has observed that the power to reassess is conceptually different from a power to review. The Assessing Officer under the said Act has only power to reassess on fulfillment of certain precondition namely, he must have reason to believe that income has escaped assessment and that there must be tangible material to come to the conclusion that there is an escapement of income from assessment, The Apex Court cautioned that in the garb of reopening an assessment review should not take place. This court following the apex Court in the matter of Cartini India ltd. v. Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable on record, I have no hesitation to hold that the reopening the assessment was completely incorrect and hence the reopening of the assessment by the AO is held to be bad in law. Accordingly, the reassessment order passed by AO is annulled. Hence, appellant's this ground of appeal is allowed. 5. The ld. DR submitted before us that the assessment of fringe benefits was rightly reopened u/s 115WG of the I.T. Act as the contribution towards superannuation fund had escaped the assessment and prayed for setting aside the order of the CIT(A) and upholding the order of the AO. Per contra, the ld. AR submitted before us that the ld. AO could not reopen already completed assessment merely on the ground of change of opinion. There must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing decisions in support of the assessee's case:- (i) CIT vs. Kelvinator of India Limited (2010) 320 ITR 561 SC (ii) B. J. Services Company Middle East Ltd. and others vs. DDIT dated 20 August, 2011 (Uttarakhand High Court) (iii) Siemens Information System Ltd. vs. ACIT (2007) 295 ITR 333 (Bom) (iv) ACIT vs. Rajesh Jhaveri Stock Brokers P. Ltd (2007) 291 ITR 500 (SC) (v) Eveready Industries India Ltd. vs. JCIT [2000]-243 ITR 540 (Gau.) (vi) Bawa Abhai Singh vs. Dy. CIT [2002]-253 ITR 83 (Del.) And ultimately, prayed for upholding the order of the first appellate authority which was perfect and as per law. 7. We have heard the rival submissions and perused the material on record. We find from the records, orders of authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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