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TMI Blog2019 (1) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax (Appeals)-9, Mumbai [hereinafter 'the CIT(A)] erred in confirming the action of the AO in reopening the assessment of the Appellant by issuing notice u/s. 148 of the Income Tax Act, 1961. 2. The Appellant submits that the re-opening of assessment is bad in law, ultra vires and contrary to the provisions of the Act; hence, the order passed u/s. 143(3) r.w.s. 147 of the Act shall be quashed." 2.1 Facts as emanating from the records are that the assessee being resident corporate entity engaged as share brokers and dealers in shares, securities and derivative instruments was subjected to reassessment proceedings u/s 143(3) read with Section 147 on 20/03/2015 wherein the tax rebate u/s 88E claimed by the assessee at Rs. 30.21 Crores and allowed during original assessment proceedings was restricted to Rs. 15 Crores, without there being any change in the overall assessed income of Rs. 148.27 Crores as per latest assessment order after giving effect to order of first appellate authority. 2.2 The original return of income for impugned AY was e-filed on 31/10/2007 at Rs. 120.41 Crores which was later revised on 31/03/2009 at Rs. 137.48 Crores to disallow spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income / turnover, allowable rebate u/s. 88E would not exceed Rs. 15 Crores. Thus, excess tax rebate U/s.88E of Rs. 15.21 Crores (approx.) has been allowed to the assessee which is required to be withdrawn. The perusal of the same revealed that reassessment proceedings were initiated primarily in view of the fact that the assessee did not properly allocated expenditure between share trading activity and brokerage activity which has resulted into excess claim of rebate u/s 88E by Rs. 15.21 Crores. 2.4 Although the assessee objected to validity of assessment proceedings and drew attention to the details / workings submitted & examined during original assessment proceedings, however, not convinced Ld. AO disallowed alleged excess rebate of Rs. 15.21 Crores as allowed to assessee u/s 88E during original assessment proceedings. 3. The assessee contested the stand of Ld. AO on legal grounds as well as on merits before Ld. CIT(A) with partial success vide impugned order dated 10/10/2016 and submitted that the facts recorded by Ld. AO were factually incorrect since the expenses were properly allocated by the assessee between the two activities and the same were duly examined during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me over and above which was already allocated by the Appellant. Hence, he kept the income same as assessed originally subject to relief given by the CIT(A)'s appellate order of round 1 dated 03.09.2010. Appeal No. CIT(A)8/Cir-4/294/2009-10 itself. In view of these facts I am of the view that the AO was not justified in reducing the rebate in the present assessment order u/s 147 dated 20/3/2015(which was originally claimed by the appellant and allowed by the AO) and therefore, the same is deleted. Accordingly, the AO is directed to allow the claim of rebate u/s 88 of the l.T. Act of the appellant as it was claimed by the appellant. Aggrieved, the revenue is under appeal before us whereas the assessee has filed cross-objections which question the validity of reassessment proceedings. Both the representatives have advanced argument to support their respective stand. 4. We have carefully heard the rival contentions and perused relevant material on record including documents placed in the paper-book and judicial pronouncements cited before us. Since the assessee's cross objection raises a pertinent issue of validity of reassessment proceedings, which goes to the root of the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment by taking recourse to the provisions of Section 147. We find, ourself, in respectful agreement with the view taken by the Full Bench of the Delhi High Court. 10. It is further to be seen that the Legislature has not conferred power on the Assessing Officer to review its own order. Therefore, the power under Section 147 cannot be used to review the order. In the present case, though the Assessing Officer has used the phrase 'reason to believe', admittedly between the date of the order of assessment sought to be reopened and the date of formation of opinion by the Assessing Officer, nothing new has happened, therefore, no new material has come on record, no new information has been received, it is merely a fresh application of mind by the same Assessing Officer to the same set of facts and the reason that has been given is that the some material which was available on record while assessment order was made was inadvertently excluded from consideration. This will, in our opinion, amount to opening of the assessment merely because there is change of opinion. The Full Bench of the Delhi High Court in its judgment in the case of Kelvinator [2002] 256 ITR 1 referr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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