TMI Blog2017 (6) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered and formed an opinion on the material in the original assessment itself then he would be powerless to start the proceedings for reassessment. Hon ble Supreme Court in the case of CIT vs. Kelvinator of India Ltd. [ 2010 (1) TMI 11 - SUPREME COURT ] has held that he concept of change of opinion must be treated as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, the Assessing Officer has power to reopen an assessment, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Reopening in the instant case has been made on the basis of very same set of material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 40A(3) is a presumption, assumption misconception and ought to have been allowed. 4. For that, the addition of an amount of ₹ 12,86,100/- to the total income for the alleged contravention of section 40A(3) deserves to be deleted due to compiling ground realities and existence of exceptional and unavoidable circumstances. 5. For that, the appellant craves leave to add/amend/alter further grounds if any at the time of hearing of appeal. 3. Ld D.R. had no objection to the admission of additional grounds of appeal raised by the assessee. Hence, they were admitted and the parties were allowed to make their submissions thereon. 4. In Ground No.2 of the additional ground of appeal, ld A.R. of the assessee has challenged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer has recorded that books of account and bills and vouchers were produced and verified by him. In view of above, as the Assessing Officer in the original assessment proceedings u/s.143(3) of the Act has verified the freight charges and thereafter made a considered disallowance of 5% out of the total expenses claimed by the assessee of ₹ 72,37,631/- and made an addition of ₹ 3,61,882/- to the income of the assessee, then on the basis of very same materials, the Assessing Officer cannot reopen the assessment by issue of notice u/s.148 of the Act as it amounts to change of opinion. Therefore, the reopening of assessment is bad in law and it was his prayer that the assessment order dated 23.7.2014 should be cancelled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, exceeds rupees twenty thousand, no deduction shall be allowed in respect of such expenditure. Therefore, the amount of ₹ 13,06,100/- paid in cash towards freight charges was to be disallowed u/s.40A(3) of the Act and added to the income of the assessee. In view of the above, I have reason to believe that income of ₹ 13,06,100/- chargeable to tax has escaped assessment within the meaning of section 147 of the I.T.Act, 1961 for the assessment yer 2009-2010. 8. A reading of the above recorded reasons shows that there was no new material which has come to the knowledge of the Assessing Officer to show after passing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry powers to the Assessing Officer to re-open assessments on the basis of mere change of opinion , which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review; he has the power to reassess. But reassessment has to be based on fulfillment of certain pre-condition 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 an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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