TMI Blog2020 (2) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... rial, the reappraisal of same material to initiate reassessment proceedings tantamounts to change of opinion and hence bad in law - Reassessment proceedings and first appellate order are dismissed. - Decided in favour of assessee. - ITA No. 333/CTK/2019 - - - Dated:- 5-2-2020 - Chandra Mohan Garg, Member (J) For the Appellant : B. N. Agarwal and Binod Agarwal, ARs For the Respondents : Subhendu Dutta, DR ORDER Chandra Mohan Garg, Member (J) 1. This is an appeal filed by the assessee against the order of the CIT(A), Sambalpur dated 29.8.2010 for the assessment year 2009-2010. 2. In Ground No. 1 of appeal, the grievance of the assessee is that the assessment orders as well as the Ld. CIT(A) are bad in law on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why the same shall not be added to your total income. 3. AS per section 24(b) of the IT Act, 1961 interest on borrowed capital [of the current year pre-construction period] is deductible subject to a maximum ceiling of ₹ 15000/-. On going through the 'computation of total income' annexed with the return of income, it is seen that you have claimed interest on borrowed capital of ₹ 250,109/-. Therefore, please explain as to why the differential amount of ₹ 100,109/- (150,109 (-) 250,000) shall not be added to the total income. 6. The assessee objected to the reassessment and submitted that the assessee had fully and truly disclosed all the material facts necessary for his assessment, and that, on the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice u/s. 148 of the Act, the assessee has stated that the assessee has not made any excess investment of ₹ 7,00,000/- in the assessment year 2009-2010. He submitted that the admission during the course of survey u/s. 133 of the Act does not have any evidentiary value as has been held by CIT vs. S. Khadar Khan Son, 352 ITR 480 (SC). He submitted that on the basis of the admission by the assessee, as alleged by the AO, the reopening of assessment was done. Ld. counsel further submission that the Amritsar Tribunal of ITAT in the case of Didar Singh vs. DCIT, 2018 Taxpub (DT) 3038 has held that merely on the basis of admission/confession during survey under section 133 assessee could not therefore have been subjected to additions unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pen the proceedings without anything further, the same would amount to giving a premium to an authority exercising quasi judicial function to take benefit from it's own wrong . The decision of the Hon'ble Delhi High Court is approved by Hon'ble Supreme Court in the case reported as CIT vs. Kelvinator of India Ltd. (320 ITR 561) wherein, it is held as under: On going through the changes, quoted above, made to Section 147 of the Act, we find that, prior to Direct Tax Laws (Amendment) Act, 1987, re-opening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act [with effect from 1st April, 1989 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act and rebutted that the admission of ₹ 7,00,000/- during the course of survey and submitted that he has not made any excess investment of ₹ 7,00,000/- and other queries are also replied. From the above submissions, I do not find any tangible materials before the AO for reopening the assessment u/s. 147 of the Act. As regards to the contention of Ld. D.R. that there was audit objection, I perused the assessment records and find that there is no such mention of audit objection in the satisfaction note. Therefore, in the absence of any fresh material, the reappraisal of same material to initiate reassessment proceedings tantamounts to change of opinion and hence bad in law. Hence, I quash the same. Consequently, the reasses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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