TMI Blog2020 (12) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was completed u/s.143(3) of the Act and as it appears from the order sheet, the assessee has appeared time to time and produced the documents as directed by the AO. If there is any advertent mistake pointed out by the AO, the same could have been rectified under section 154 of the Act and not reopening the assessment. Therefore, on reading of the order sheet, we find that the reopening of the assessment has no jurisdictional foundation and, therefore, the reassessment order is liable to be annulled. See M/S. KELVINATOR OF INDIA LIMITED [ 2010 (1) TMI 11 - SUPREME COURT] - Decided in favour of assessee. - ITA No.27/CTK/2020 - - - Dated:- 14-12-2020 - Shri Chandra Mohan Garg, Judicial Member And Laxmi Prasad Sahu, Accountant Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old part flat measuring 579 sq.ft and retained the other two flats totalling measuring 3342 sq.ft and claimed deduction u/s.54F on the value of the two flats retained amounting to ₹ 79,61,816/-. The AO has accepted the claim. However, on further perusal of the case it was observed that u/s.54F of the Act, exemption is allowable in respect of one residential property only. Accordingly, after recording reasons for reopening the case was reopened u/s.147 of the Act with approval of the JCIT, R-2, BBSR vide letter in F.No.JCIT/R- 2/BBSR/151/2016-17/1808 dt.8.7.2016. A notice u/s.148 of the Act dt.14.7.2016 was issued to the assessee served on the assessee on for filing of return of income within 30 days. In response, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.R. submitted written explanation on 22.6.2017 in which, it was submitted that the word a appears in Section 54F should not be constructed as singular but as plural and also brought to the notice of the AO to the decision of Hon ble Delhi High Court dated 21.2.2013 delivered in the case of CIT vs Gita Duggal in ITA No.1237/2011. But the AO did not accept the contention of the assessee. 6. Ld A.R. referred to the reassessment proceedings page 4 wherein, the AO has stated that at the time of assessment deduction u/s.54F was allowed for two flats only measuring 3342 sq.ft amounting to ₹ 79,61,816/-. Subsequently, it has come to the notice of the AO that deduction was allowed u/s 54F inadvertently to two residential units instead o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly shows that the same material which was considered by the Assessing Officer in the original assessment order was again considered by the Assessing Officer in the re-assessment order and based on that, the reassessment proceedings were finalized and income of the assessee was computed at ₹ 50,91,110/- denying excess allowance of deduction claimed u/s. 54F of the Act. We also observe that the ground that inadvertently deduction was allowed u/s.54 of the Act, in our considered opinion, cannot be a ground to reopen the assessment, which was completed u/s.143(3) of the Act and as it appears from the order sheet, the assessee has appeared time to time and produced the documents as directed by the AO. If there is any advertent mistake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer has no power to review; he has the power to reassess. 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 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, 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. Therefore, the reopening of the assessment by the AO was bad in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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