TMI Blog2016 (5) TMI 1522X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has escaped assessment. It is only from the records the Assessing Officer came to the conclusion that the expenses are not allowable and therefore there is escapement of income. This is only a mere change of opinion of the Assessing Officer to reopen the assessment based on the materials already available on record which it is not permissible under law. See RALLIS INDIA LTD. VERSUS ASSISTANT COMMISSIONER OF INCOME-TAX AND ANOTHER [ 2010 (3) TMI 164 - BOMBAY HIGH COURT] - Decided in favour of assessee. - ITA No. 1176/Mum/2011 - - - Dated:- 27-5-2016 - SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For the Appellant : Shri Sharad Shah For the Respondent : Shri S. Senthil Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the reasons were culled out from the records and as such there is no tangible materials for issue of notice u/s. 148 of the Act. He submits that it is a mere change of opinion for reopening the assessment and to disallow the expenses incurred towards repairs and maintenance and reopening of assessment on mere change of opinion is not permissible in law. He places reliance on the following decisions: 1. Rallis India Ltd Vs ACIT (323 ITR 54) (Bombay H. C) 2. Godrej Agrovat Ltd. Vs DCIT 323 ITR 97 (Bombay H. C) 3. CIT Vs Kelvinator of India (320 ITR 561) (SC) 4. The Ld. Departmental Representative submits that this ground has not raised before the Ld. CIT(A) and for the first time this ground is raised bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords that the payment of Rs, 7,00,000/- represents payment made to Shree Dutta Indus (I) Ltd, another company. Similarly, the amount of ₹ 2,70,000/- represents the monthly contribution paid to the Cambatta Bldg., Tenants Association building Repair fund set up for taking care of present and future contingent repairs and renovation of Cambatta Bldg.,(Eros Bldg.), lift maintenance and other amenities. As such, both these expenditures are not allowable deductions. I have, therefore, reason to believe that income to the extent of ₹ 9,70,000/- has escaped assessment within the meaning of Sec. 147 of the I.T. Act, 1961. 7. As could be seen from the above reasons recorded for the reopening of assessment, the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that income chargeable to tax has escaped assessment. The principle that there must be tangible material on the basis of which an assessment is sought to be reopened even within a period of four years is now established in view of the judgment of the Hon ble Supreme Court in CIT vs. Kelvinator of India Ltd.(2010) 320 ITR 561. The Supreme Court has held thus(page 564): Therefore, post April 1, 1989, power to reopen is much wider. However, one needs to give a schematic interpretation to the words reason to believe failing which, we are afraid, section 147 would give arbitrary powers to the Assessing Officer to reopen assessments on the basis of mere change of opinion , which cannot be per se reason reopen. We must also keep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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