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TMI Blog2019 (9) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... d facts of the case. 3. On the facts and in the circumstances of the caser the CIT(A) has erred in holding that the assessment reopened u/s 147 Is invalid and deleting the addition made by the AO on account of product warranty. 4. On the facts and in the circumstances of the case, the CIT (A) has not appreciated Explanation 1 to Section 147 which states that production before the AO of account books or other evidence from which material evidence could with due diligence have been discovered by the AO will not necessarily to disclosure within the meaning of foregoing proviso, 5. On the facts and in the circumstances of the case, the CIT (A) has erred in holding that this was a mere change of opinion, when in fact the issue had not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A). Before, the Ld.CIT(A), the assessee has challenged reopening of assessment u/s 147 on two grounds. The first arguments of the assessee before the Ld.CIT(A) was that the assessment has been reopened on change of opinion without there being any tangible material, which is evident from reasons recorded for reopening of assessment, where the Ld.AO has referred to assessment records without any fresh material in his possession to establish escapement of income. The assesee has also challenged reopening of assessment, in light of proviso to section 147 of the I.T.Act, 1961 and argued that unless, the AO shows that there is failure on the part of assessee to disclose fully and truly, all material facts necessary for assessment, the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning assessment. Accordingly, held that reopening of assessment u/s 147 is invalid. Consequently, the additions made by the AO towards product warranty is deleted. Aggrieved by the Ld. CIT(A) order, the revenue is in appeal before us. 6. The Ld. DR submitted that the Ld. CIT(A) has erred in holding that the reassessment is bad in law without appreciating the fact that Explanation (1 ) to section 147 states that production before the AO of account books or other evidences from which material evidence could with due diligence have been discovered by the AO will not necessarily amount to disclosure within the meaning of proviso to section 147 of the Act. The Ld. DR, further submitted that the Ld. CIT(A) has erred in holding that the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been completed u/s 143(3) of the I.T.Act, 1961, where the assesee has filed a detailed note on product warranty provision and the AO has discussed the issue in the assessment and after being satisfied with explanation filed by the assesee completed assessment. Therefore, this is a classic case of change of opinion, and hence, the ld.CIT(A) was right in quashing reassessment proceedings. In this regard, he relied upon the decision of Hon'ble Supreme Court in the case of ITO vs TechSpan India (P.) Ltd.(2018) 302 CTR 74 (SC) and also the decision of Hon'ble Bombay High Court in the case of SBI vs ACIT (2019) 103 taxmann.com 164 (Bom.). The Ld. AR had also relied upon the decision of Hon'ble Bombay High Court, in the case of Pr.CIT vs M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f relevant assessment years without making any allegation as to failure on the part of assessee to disclose fully and truly all material facts necessary for assessment. Therefore, we are of the considered view that reopening of assessment, in this case was made on change of opinion without there being any tangible material in the position of the AO, which suggest escapement of income and also without making any allegation as to failure on the part of assesee to disclose fully and truly all the material facts necessary for assessment. 9. Insofar as, various case laws relied upon by the assessee, we find that the Hon'ble Supreme Court, in the case of ITO vs TechSpan India (P.) Ltd (supra) had held that where, question, as to how and to what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment and there must be something in the assessment order to show that the ITO applied his mind to the particular subject of the matter or particular source of income with a view to its taxability or to its non-taxability and not to any incidental connections. We find that the facts of the case laws relied upon by the Ld. DR is not applicable to the facts and circumstances of this case because, in this case, the Ld. AO has examined the issue in original assessment proceedings and after being satisfied with explanation furnished by the assessee accepted the claim. Insofar as, the decision of Hon'ble Supreme Court in the case of Dolgobinda Paricha Vs. Nimai Charan Misra & Othrs, we find that the word opinion has been explained by the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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