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TMI Blog2017 (2) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Kiron Roadlines as well as in his personal name. The return of income for the year under consideration was filed by him on October 31, 2004 declaring a total income of Rs. 5,68,816. In the said return, a loss of Rs. 2,46,687 was declared by the assessee in respect of the transportation business carried on in his personal name. In the assessment originally completed under section 143(3), the said loss shown by the assessee was accepted by the Assessing Officer although an addition of Rs. 1,32,000 was made by him to the total income of the assessee on account of unexplained/ unproved liabilities. The total income of the assessee, accordingly was determined by the Assessing Officer at Rs. 7,00,816 in the assessment originally completed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(3)/147 and confirming the addition made therein on the merits, he dismissed the same. Aggrieved by the order of the learned Commissioner of Income-tax (Appeals), the assessee has preferred this appeal before the Tribunal. 4. The preliminary issue raised by the assessee in this appeal relates to the validity of assessment made by the Assessing Officer under section 143(3)/ 147. Apropos this issue, the learned counsel for the assessee contended that the original assessment for the year under consideration was completed by the Assessing Officer under section 143(3) of the Act after verifying all the relevant records including the books of account of the assessee. 5. Apropos this issue, the learned counsel for the assessee contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case challenging the validity of reopening of assessment, it is relevant to refer to the reasons recorded by the Assessing Officer for reopening, which are extracted below : "The assessee an individual, carried on the business of hiring trucks. He would maintain the accounts separately for his proprietary business named after M/s. Kiron Roadlines as well as that in his self name. While the accounts of M/s. Kiron Roadlines were got audited under section 44AB of the Income-tax Act the accounts pertaining to him was riot audited. In the unaudited profit and loss account (in self name), a loss of Rs. 2,46,687 was declared which was set off against the profit of other unit, M/s. Kiron Roadlines. The assessment under section 143(3) was com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usal of the aforesaid reasons recorded by the Assessing Officer makes it abundantly clear that the assessment originally completed by him under section 143(3) was reopened by the Assessing Officer on the basis of the same records as was available before him while completing the original assessment under section 143(3) and there was no new tangible material that had come to his possession on the basis of which the assessment was reopened by him. At the time of hearing before me, the learned Departmental representative has not disputed this position. The only contention raised by him is that the reopening of assessment by the Assessing Officer was based on altogether new issues, which had not been examined by the Assessing Officer during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an in-built test to check the abuse of power and hence the Assessing Officer even after the amendments made in the relevant provisions from April 1, 1989 has the power to reopen an assessment provided there is tangible material to come to the conclusion that there was escapement of income from assessment. Applying the ratio laid down by the hon'ble Supreme Court in the case of Kelvinator of India Ltd. (supra) and by the hon'ble jurisdictional High Court in the case of Debashis Moulik v. Asst. CIT (supra), I hold that the reopening of assessment made by the Assessing Officer in the present case was bad in law as the same was based merely on the change of opinion and the assessment completed by him under section 143(3) read with secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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