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TMI Blog2022 (5) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... s.143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter the 'Act') vide order dated 21.11.2019. 2. The first issue in this appeal of assessee is as regards to the order of CIT(A) confirming the action of AO in upholding the reopening of assessment u/s.147 r.w.s. 148 of the Act in violation of first proviso to section 147 of the Act as the original assessment was completed u/s.143(3) of the Act and there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of the assessee for the relevant assessment year. For this, assessee has raised following three grounds:- 1. The learned CIT(A) has erred in upholding the reopening of assessment beyond 4 years when the original asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter facts necessary for the assessment for that assessment year and it is fit case for reopening." Consequently, the AO disallowed a sum of Rs.21,44,215/- towards loading / sorting expenses and Rs.10,77,899/- towards container stuffing charges, as the assessee has failed to deduct TDS u/s.194C of the Act and thereby invoked the provision of section 40(a)(ia) of the Act, thereby the total disallowance of expenses comes to Rs.32,22,114/-. Aggrieved assessee preferred appeal before the CIT(A). 4. Before CIT(A), the assessee challenged the reopening of assessment but CIT(A) rejected the ground raised by assessee challenging the reopening of assessment and confirmed the action of AO by observing in para 5.6 as under:- "5.6 I have careful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there is no evidence for deduction of TDS as per column 27(a) of the Form No.3CD i.e., audit report filed by the assessee along with the return of income. It means that the assessee has filed the complete details of particulars before the AO and from very return of income the AO has chosen these reasons. We noted that this issue is squarely covered in favour of assessee assessee and against the Revenue by the decision of Hon'ble Supreme Court in the case of CIT vs. Kelvinator of India Ltd., 320 ITR 561. The Hon'ble Supreme Court in Kelvinator of India Ltd., supra, has considered that there cannot be change of opinion based on the material which was already available with the AO at the time of original assessment. The Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the garb of reopening 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. Our view gets support from the changes made to Section 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, Parliament not only deleted the words "reason to believe" but also inserted the word "opinion" in Section 147 of the Act. However, on receipt of representations from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and there is no failure on the part of the assessee to disclose material facts necessary for its assessment truly and correctly for the relevant assessment year as the assessee has filed details of Rs.21,44,215/- towards loading / sorting expenses and Rs.10,77,899/- towards container stuffing charges. Hence, even otherwise there is change of opinion in view of the decision of Hon'ble Supreme Court in the case of Kelvinator India Pvt. Ltd., supra. Hence, we quash the reopening and allow this jurisdictional issue in favour of the assessee. 6. Since we have allowed the jurisdictional issue, we need not to go in to the merits of the case. 7. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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