TMI Blog2019 (9) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - CIT(A) has rightly quashed reassessment proceedings - Decided in favour of assessee. - ITA No.262/Mum/2016 - - - Dated:- 6-9-2019 - Shri Saktijit Dey, Judicial Member And Shri G. Manjunatha, Accountant Member For the Assessee : J.D.Mistry Madhur Agarwal For the Revenue : Anadi Varma ORDER PER G.MANJUNATHA (A.M): This appeal filed by the revenue is directed against the order of the Commissioner of Income Tax (Appeals) 5, Mumbai, dated 27/10/2015 and it pertains to the Assessment Year 2005-06. 2. The revenue has raised the following grounds of appeal:- 1. The Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic. 4. Aggrieved by the assessment order, the assessee preferred an appeal before the Ld.CIT(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 assessment cannot be reopened after a period of four years from the end of relevant assessment years, if such assessment has been completed u/s 143(3) of the I.T.Act, 1961. 5. The Ld.CIT(A), after considering relevant submissions of the assessee and also by relied upon the decision of Hon ble Supreme Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also the decision of Hon ble Supreme Court in the case of CIT vs Rai Bahadur Hardutory Motilal Chamaria (1967) 66 ITR 443 (SC) 7. The Ld. AR for the assesee, strongly supporting order of the Ld. CIT(A) submitted that the Ld. CIT(A) has appreciated the facts, in light of reasons recorded by the Ld. AO and assessment order passed u/s 143(3) of the I.T.Act, 1961, to come to the conclusion that the assessment has been reopened on change of opinion without there being any tangible material, which suggest escapement of income. The Ld. AR, further submitted that the Ld. CIT(A) had also recorded categorical findings, in light of proviso to section 147 of the I.T.Act, 1961 and held that unless, there is a allegation from the AO that there is a failure, on the part of assesee to disclose fully and truly all material facts necessary for assessment, the assessment cannot be reopened after four years from the end of relevant assessment year, if such assessment has been completed u/s 143(3) of the I.T.Act, 1961. In this case, there is no doubt with regard to fact that the assessment has been completed u/s 143(3) of the I.T.Act, 1961, where the assesee has filed a detailed no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered 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 extent deduction to be allowed u/s 10A was well considered in original assessment proceedings itself, initiation reassessment proceedings u/s 147 by issuing a notice u/s 148, merely because of fact that now AO was of view that deduction u/s 10A was allowed in excess, was based on nothing, but a change of opinion. The Hon ble Bombay High Court, in the case of SBI vs ACIT (supra) had considered reopening, in light of proviso to section 147 and held that where, in original return outstanding credit interest lying in inter branch account for more than 10years as on 30/09/2010 was credited to profit and loss account by assesee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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