TMI Blog2018 (8) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of income. It is also argued that the allowances were not specifically granted and there is no reasoning available in the order; which alone would reveal a definite opinion having been formed by the AO. True, the AO could have found the wrong claims made by the assessee from the profit and loss account as also the depreciation Schedule filed under the IT Rules. However, obviously, there is no discussion nor is there any finding entered into in the assessment order at Ext.P2. We do not see any of the issues having been discussed by the AO, nor is there an opinion expressed specifically with respect to the issues now sought to be reopened under Section 147. In such circumstances, it cannot be said that there was a mere change of opinion in initiating the reassessment proceedings under Section 147 within the four year period by the new incumbent AO. Decided against the assessee. - W. A. No. 936 of 2013 - - - Dated:- 6-7-2018 - Mr. K. Vinod Chandran And Mr. Ashok Menon, JJ. For The APPELLANT : SRI.M.GOPIKRISHNAN NAMBIAR AND SRI.K.JOHN MATHAI For The RESPONDENT : SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) AND SRI.JOSE JOSEPH, SC, FOR INCOME TAX JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Single Judge also, to contend that in the present case there is only a mere change of opinion and there could be no reassessment proceedings taken. The learned counsel for the appellant relies on the Full Bench decision of the Delhi High Court reported in (2002) 256 ITR 1 [Commissioner of Income Tax v. Kelvinator of India Ltd.], which was followed in (2012) 348 ITR 485 [Commissioner of Income Tax v. Usha International Ltd.]. The decision in Kelvinator of India Ltd. (supra) Was upheld by the Full Bench of the Honourable Supreme Court in (2010) 320 ITR 561 [Commissioner of Income Tax v. Kelvinator of India Ltd.]. 3. The learned Senior Counsel for Government of India (Taxes) seeks to sustain the order and argues that merely because certain dis-allowances, which ought to have been made, were allowed, it cannot be said that there was a clear conclusion arrived at by the Assessing Officer. The thrust of the arguments of the Revenue was that merely because the assessee had pointed out certain issues or that it was discussed would not necessarily lead to a conclusion that in allowing the deduction, the Assessing Officer (AO) had come to a conclusion as to the sustainability of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO as available in the records. It contains the depreciation for plant and machinery and brand name is shown separately in the said Schedule. The AO admits that on a careful scrutiny, definitely, dis-allowance ought to have been made by the person who carried out the original scrutiny assessment under Section 141(3). The learned Senior Counsel for the Revenue, supports the AO and points out that as per the decisions cited by him, even an error committed by the AO would come within the ambit of a re-opening on valid grounds of escapement of income. It is also argued that the allowances were not specifically granted and there is no reasoning available in the order; which alone would reveal a definite opinion having been formed by the AO. 6. Looking at the decisions, we see that in Kelvinator of India Ltd. (supra), the Full Bench of the Delhi High Court found that a mere change of opinion of the AO is not a ground for re-assessment. In that decision, the contention raised by the Department was that after the amendment of Section 147 in 1987, the requirement for (i) disclosure of full and true material facts or (ii) availability of information in the possession of the income tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. We have noticed that, definitely, the aforesaid issue was placed before the AO by the assessee by way of Ext.P1 communication which we have also found in the records. However, it is not an answer to a query. The assessment order also does not show any discussion with respect to the aforesaid deductions claimed by the appellant. Before we proceed to decide on the specific question whether reassessment is possible, we have to notice that the order on rectification and the further appeal therefrom would not have any bearing on the issue to be decided here. The order on rectification is seen from Ext.P3. After the assessment order was passed, the assessee had applied for rectification with respect to the unabsorbed depreciation for earlier years and credit for unabsorbed business loss. The claim for unabsorbed depreciation was allowed. But, however, the other issue was rejected on rectification finding that the same would not fall within the scope of a rectification. An appeal was filed by the assessee in which Ext.P4 order was passed wherein the claim for credit of unabsorbed business loss was also allowed. None of these issues are now sought to be reopened by the AO. In such circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, that nothing that can be found in the record of the assessment, which itself would show escape of assessment or under-assessment, can be viewed as information which led to the belief that there has been escape from assessment or under-assessment. Suppose a mistake in the original order of assessment is not discovered by the Income Tax Officer himself on further scrutiny but it was brought to his notice by another assessee or even by a subordinate or a superior officer, that would appear to be information disclosed to the Income Tax Officer. If the mistake itself is not extraneous to the record and the informant gathered the information from the record, the immediate source of information to the Income Tax Officer in such circumstances is in one sense extraneous to the record. It is difficult to accept the position that while what is seen by another in the record is information what is seen by the Income Tax Officer himself is not information to him. In the latter case he just informs himself. It will be information in his possession within the meaning of section 34. In such cases of obvious mistakes apparent on the face of the record of assessment, that record itself can be a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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