9911796707
TMI Blog2022 (6) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... ection filed by the assessee is in respect of reopening of assessment under section 147 of the Income Tax Act, 1961 ["Act" in short]. Since the reopening of assessment goes to the root of the matter, we shall first adjudicate the issue of reopening of assessment. 3. Facts, are in brief that the assessee filed his return of income for the assessment year 2009-10 on 29.09.2009 declaring total income of Rs..1,31,78,732/-. The return filed by the assessee was processed under section 143(1) of the Act and thereafter, the assessment was completed under section 143(3) of the Act dated 08.12.2011. In the original assessment order, the Assessing Officer has considered the claim of deduction under section 54EC and section 54F of the Act and the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reopening of assessment under section 147 of the Act and dismissed the ground raised by the assessee. However, on merits, the ld. CIT(A) allowed the grounds. 5. The assessee preferred Cross Objection by objecting confirmation of reopening of assessment under section 147 of the Act, whereas, the Revenue preferred appeal against allowance of exemption under section 54EC and section 54F of the Act. 6. So far as Cross Objection filed by the assessee is concerned, besides challenging ld. CIT(A)'s confirmation of the reopening of assessment, by filing additional grounds of CO, the assessee has also contended that there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for completing the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 of the Act. 8. We have heard both the sides, perused the materials available on record and gone through the orders of authorities below including case law relied upon by the assessee. In this case, the original assessment under section 143(3) of the Act was completed on 08.12.2011, wherein, the Assessing Officer has verified the claim of deduction under section 54EC and 54F of the Act at para 7 and 8 of the assessment and accepted the claim of deduction under section 54EC of the Act as well as restricted the claim of deduction under section 54F of the Act to the extent of Rs..45,58,932/-. The relevant portion of the order is reproduced as under: "7) Verification of claim of deduction under section 54EC and 54F: On 20/09/2011 afterno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his only to retain his claim of the deduction under section 54F as the deduction is not allowable in case where the assessee has more than one house property. The assessee asked for time till 26/09/2011 to prove the same. The assessee appeared on 26/09/2011 and produced a copy of the property assessment of the house property at Shanti Avenue. It shows that the owner of the house property is Mr. N. Sivakumar. Thus, the assessee's claim that the house property is not his own property was partially proved, However, there was still suspicion whether the house property was under the assessee's possession during financial year 2008-09 and that he had subsequently sold it. Thus, the Inspector of Income Tax, attached to this office, Mr. Anu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer had power to re-assess but no power to review. If the concept of "change of opinion" is removed, review would take place in the garb of reopening of assessment. Applying the ratio of the above judgement of the Hon'ble Supreme Court to the instant case, since no new material was brought on record after completion of assessment under section 143(3) of the Act, the reopening of assessment was not on account of fresh material or change of law, the reopening of assessment is liable to be quashed. 8.2 So far as reopening of assessment under section 147 of the Act after four years is concerned, the reasons must record that there was a failure on the part of the assessee to disclose material facts or reasons must lead to clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had escaped assessment, the second condition was not satisfied in the instant case as the assessee had disclosed fully and truly all necessary material facts in the course of original assessment proceedings and the Assessing Officer has identically verified the same in para 7 and 8 of the assessment order under section 143(3) of the Act dated 08.12.2011. Thus, the Assessing Officer has not established that the assessee has not made a full and true disclosure of all material facts. Since the reasons recorded in the present case did not meet the conditions stipulated under section 147 of the Act, the reassessment proceedings could not be sustained in view of the judgement of the Hon'ble Jurisdictional High Court in the case of CIT v. Schwing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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