TMI Blog2022 (5) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. [ 2010 (1) TMI 11 - SUPREME COURT] as 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 Court further held that there should be some tangible material came to the notice of the AO after completion of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 assessment was completed u/s.143(3). 2. The learned CIT(A) erred in upholding the reassessment which clearly violated the provisions of the first proviso to section 147 of the Act since the appellant had disclosed fully and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99/- 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 carefully considered the additional grounds raised by the appellant challenging the reopening of assessment. The appellant has contended that assessment had been completed u/s.143(3) and four years had expired, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Court further held that there should be some tangible material came to the notice of the AO after completion of assessment and on that basis reopening can be done. The Hon ble Supreme Court observed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 the Companies against omission of the words reason to believe , Parliament re-introduced the said expression and deleted the word opinion on the ground that it would vest arbitrary powers in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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