TMI Blog2013 (6) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing its income. 2.2 The learned CIT(A) ought to have appreciated that mere production of details before the assessing officer from which material evidence would have been discovered with due diligence will not necessarily amount to disclosure within the provisions of section 147 of the Act. 2.3 Having regard to the above facts and circumstances, the ld. CIT(A) ought to have appreciated that the proviso to sec.147 is not applicable to the facts of the case. 2.4 It is further submitted that while disposing the Writ Petition in the case of M/s. Dalmia P Ltd Vs. CIT in WP(Civil) No.6205 of 2010 dated 26.09.2011, the Hon ble Delhi High Court held, Even when there was specific and pointed queries in Sec.143(3) assessment, AO cannot be said to have formed any opinion. If explicit opinion was not recorded, certainly the AO cannot be said to have formed any opinion in the first instance, to render the reasons recorded for reopening the assessment, as a change of opinion. 3. The Ld CIT(A) erred in deleting the disallowance made u/s 40(a)(ia) amounting to ₹ 3.54 crores on land development expenses and JCB charges; 3.1 The Ld CIT(Appeals) erred in further delet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the reopening of the assessment made by the Assessing Officer under section 147 of the Income-tax Act, 1961. The second issue is regarding the deletion of the additions made by the Commissioner of Income-tax(Appeals). The first issue is on the question of jurisdiction and the second issue is on merit. 4. First we will consider the question of law regarding assumption of jurisdiction. The assessee had filed its original return on 29-12-2006. Initially, the return was processed and filed. Thereafter, the return was selected for scrutiny assessment. The scrutiny assessment was completed under section 143(3) on 31-12-2008. Thereafter, a notice under section 148 was issued on 25-3-2011. The assessee complied with the notice by requesting the Assessing Officer to treat the original return filed by it as the return filed in response to the notice under section 148. 5. The Assessing Officer has communicated the reason for reopening of the assessment through his letter dated 19-10-2011. According to the Assessing Officer the reopening was made to verify the claim of expenses of ₹ 41,70,64,648/- incurred by the assessee as cost of land development. The Assessing Officer also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p of JCB, Bulldozer Tractor Hire Charges and particulars of tax deduction on eligible payments. 4 24.11.2008 Details of land levelling cost, Jelly and metal expenses, name and address of the persons who undertook the JCB work along with the books of accocunts and vouchers 5 01.12.2008 Details of Tractor hire charges along with the relevant documents to prove that at no point of time an individual tractor owner was paid ₹ 20000/- through a single payment and ₹ 50000/- per annum. The books of accounts and corresponding vouchers were also produced. 6 03.12.2008 Clarification regarding the non applicability of TDS provisions on a major portion of JCB and Bull Dozer Charges 7 12.12.2008 Details regarding the payment of stamp duty 8 19.12.2008 Clarification regarding the wrong nomenclature of actual land cost posted under the head Land Development Cost by mistake along with necessary and supportive documents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is squarely applicable to the present case. The Commissioner of Income-tax(Appeals) also relied on the judgment of the Hon ble Supreme Court in the case of CIT vs. Kelvinator of India Ltd., 320 ITR 561, where the Hon ble apex court has held that the Assessing Officer can reopen the assessment only if there is tangible material to come to the conclusion that there is escapement of income and the reassessment cannot be merely on change of opinion. In the light of the above facts and circumstances of the case and following the binding pronouncements of the constitutional courts, the Commissioner of Income-tax(Appeals) held that the impugned reassessment is invalid and he accordingly set aside the assessment. 9. On hearing both sides in detail and perusing the material on record, we are of the considered opinion that we have no reason to deviate from the decision taken by the Commissioner of Income-tax(Appeals). The synopsis of the details furnished by the assessee, reproduced by the Commissioner of Income-tax(Appeals) in page 3 of his order, clearly shows that the Assessing Officer had called for almost all the relevant details necessary for completing the assessment under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter to contradict the earlier opinion arrived at by the Assessing Officer, it is not permissible under law to reopen the assessment only for the sake of re-examining the same issues, which were already examined in the course of original assessment. It is in this context that we find that the Commissioner of Incometax( Appeals) has rightly followed the decision of the Hon ble jurisdictional High Court in the case of CIT vs. Cholamandalam Investment and Finance Co. Ltd. 309 ITR 110. As held by the Hon ble High Court in that case, in the present case as well, the basic details of the case were furnished before the Assessing Officer and the decision at the first instance was taken on the basis of those materials and in the absence of any fresh material, there was no justification to review the earlier decision. The judgment of the Hon ble Delhi High Court in the case of CIT vs. Eicher Ltd., 294 ITR 310, is again exactly on the same line and supports the case of the assessee, as rightly pointed out by the Commissioner of Income-tax(Appeals). As held by the Hon ble Supreme Court in the case of CIT vs. Kelvinator of India Ltd., 320 ITR 561, an assessment can be reopened only if the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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