TMI Blog1996 (1) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... law based on facts, came to be rejected. The Tribunal was requested to refer the following question : " Whether, the Appellate Tribunal is right in law and on facts in holding that the assessment was not validly reopened ? " The assessee at the relevant time was a Development Officer in the Life Insurance Corporation and was drawing incentive bonus. The Assessing Officer applied his mind to the question of claim of deduction from incentive bonus and thereafter he has come to the conclusion that deduction is permissible, allowed the same and assessed accordingly. It is also clear from the record that for the assessment years 1981-82 and 1982-83 such claim being rejected by the Assessing Officer, in appeals, contentions of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee. The Assessing Officer has not at all collected "information" from any source. By a common order dated August 9, 1989, the appellate authority allowed the appeals. In paragraph 12 of the order, the appellate authority held as under : " From the fact that the Income-tax Officer has considered the assessee's submissions and allowed the assessee's claim on the basis of the decision of the Tribunal and the decision of the Commissioner of Income-tax in question goes to show that the Income-tax Officer has subsequently changed his mind and reopened the assessment under section 147(b) of the Act. In view of the case law as cited by the assessee's representative, in my opinion, the Income-tax Officer was not justified in reopen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has failed to disclose fully and truly all relevant facts necessary for assessment. It is not the case of the Department that the returns filed by the assessee were with bundles of documents. It is very clear that the Assessing Officer, after considering previous orders, decisions rendered by the Tribunals based on facts and judicial pronouncements and a circular issued by the Department, scrutinised the returns and decided the issue, i.e., allowed the deductions from incentive bonus. There is nothing to show that after the previous assessment, the Assessing Officer derived knowledge or information from an external source. At the time of previous assessment, the Assessing Officer was aware about the deduction claimed and in the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the basis of the circular a notice of reassessment was issued against which a writ petition was filed and the learned single judge quashed the said notice and restrained the Revenue from taking any proceedings to enforce the same. The correctness of the decision of the single judge was in challenge before the Division Bench in the aforesaid decision. The Division Bench, relying on an earlier decision reported in CIT v. H. D. Dennis [1982] 135 ITR 1 (Bom) reiterated that (at page 423) : " . . . information within the meaning of section 147(b) of the Income-tax Act may consist of facts or of law. The information must be fresh or subsequent to the original assessment. The opinion expressed by the Department or by the Central Board of Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal assessment, the Income- tax Officer discovers that he has committed an error in consequence of which income has, escaped assessment, it is open to him to reopen the assessment. In our opinion, an error discovered on a reconsideration of the same material (and no more) does not give him that power." We find that in the facts of these cases, the Assessing Officer was conscious about the claims made to which his attention was focused and in the light of the decisions reridered by the Tribunal, orders, etc., assessed the returns previously and no other material whatsoever was before him. To justify the exercise of the powers under section 147(b) of the Act, there must be other material and not the same material which was considered. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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