TMI Blog2020 (3) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed but we are unable to into the merits of the case because she has not been able to deny that in the original order under Section 143(3) of the Act, the issue of deduction did arise and after discussing the same a particular finding was given. Had the revenue been aggrieved of the assessment order passed under Section 143(3) of the Act, it would had the recourse under Section 263 of the Act but the present short cut method cannot be allowed. Contention of the appellant is that the phrase 'conceptual difference' between power to review and power to reassess, some how changes the law. This argument is flawed because their Lordships' have merely reiterated that invocation of Section 147 of the Act can only be on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation 2 to Section 147 of the Act permits this. The said subclause is quoted here-in-below: 147. Income escaping assessment 2 If the Assessing Officer has reason to believe] that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year): ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. On the other hand the stand of learned Senior Counsel appearing for the assessee is that explanation 2 can only be read subject to main provision of Section 147 of the Act and the interpretation which the learned counsel for the appellant is trying to give to it would give it an existence of an exception rather than an explanation. 5. We find this argument to be well merited. It is trite to say that an explanation is always subordinate to the main provision (as the name suggests, only to explain). In the present case we find that the powers under Section 147 of the Act have been now defined without any equivocation and without going to deep into it it is safe to say that a mere change of opinion cannot be considered within the ambi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re-open assessments on the basis of mere change of opinion , which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain precondition and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of change of opinion as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended section 147 to reintroduce the expression `has reason to believe' in place of the words `for reasons to be recorded by him in writing, is of the opinion'. Other provisions of the new section 147, however, remain the same. For the afore-stated reasons, we see no merit in these civil appeals filed by the Department, hence, dismissed with no order as to costs. 8. The contention of learned counsel for the appellant is that the phrase 'conceptual difference' between power to review and power to reassess, some how changes the law. This argument is flawed because their Lordships' have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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