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TMI Blog2022 (9) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... the reassessment order on the ground of invalid notice u/s 148 of the I.T. Act, 1961. The "change of opinion" as pointed out by the Ld. CIT(A) is unacceptable as the case was reopened u/s 148 of the Act not on the basis of mere change of opinion but on the basis of the escapement of huge amount of income by the assessee which was not taken into account by previous Assessing Officer. 3. The revenue has challenged the order passed by the Ld. CIT(A) on the ground that the Ld. CIT(A) has wrongly held that the reopening to be bad in law as based upon mere change of opinion and thus wrongly quashed the re-opening of assessment which is in fact made on the basis of escapement of income. 4. Facts in brief are that the return of income was filed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding as under: "6.2. I have considered the submissions of the appellant and have perused the assessment order. I find that in this case Return of income for the AY 2010-11 was filed on 23.09.2009 declaring total income of Rs. 6,33,508/-. Order u/s 143(3) of the Act was passed on 30.12.2012 on a total income of Rs. 6,34,360/-. The Ld. Assessing Officer, it appears, while recording his 'reasons to believe' noted' all the facts which were already on record as would be evident from the following: "subsequently from assessment records, on perusal, of the Profit & Loss Account (contract work) it was observed" [para-2.1] "However, it was also seen that in the Column.27 of Audit Report (Form No.SCB'), Auditor had mentioned 'As informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has no power to review; he has the power to reassess, but the reassessment has to be based on fulfillment of certain preconditions and if the concept of change of opinion' is removed as contended on behalf of the department, then 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 01.04.1989, the Assessing Officer has power to reopen, provided there is 'tangible material' to come to conclusion that there is escapement of income from assessment. Under the Direct Tax Laws' (Amendment) Act,. 1987, the Parliament not only deleted the words 'reason to believe', the Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he concerned assessment year. It is for the Assessing Officer to form his opinion. It is for him to put his opinion on record in black and white. The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded must disclose his mind. The reasons are the manifestation of the mind of the Assessing Officer. The reasons recorded should be self-explanatory and should not keep the, assessee guessing for the reasons. Reasons provide the link between conclusion and evidence. The reasons recorded must be based on evidence. The Assessing Officer, in the event of challenged to the reasons, must be able to justify the same based, on material available on record. He must disclose in the reasons as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment. In the present case, the notice was clearly issued based on the material which the Ld. Assessing Officer had sought and had been submitted by the appellant before the passing of the order u/s. 143(3) of the Act. They were part of the assessment record. The Ld. Assessing Officer was not justified in issuing notice u/s.148 of the Act on the same material which was clearly on account of 'change of opinion'. Ground of appeal is allowed." 6. The Ld. D.R. vehemently submitted before us that the Ld. CIT(A) has grossly erred in quashing the reopening of assessment u/s 147 read with 148 of the Act by ignoring the facts of record that the AO has not examined all these three issues in the original assessment proceedings and therefore there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material and therefore there was no substantive new material before the AO and thus reasons were recorded on the basis of same material as available in the original assessment proceedings. The Ld. A.R. therefore prayed that the appeal of the revenue may kindly be dismissed by upholding the order of Ld. CIT(A). 8. After hearing the rival parties and perusing the material on record, we note that the assessment was framed in the case of assessee u/s 143(3) of the Act vide order dated 30.12.2012. We observe from the records and also rival arguments before us that the reasons recorded on the basis of audit report which was available before the AO at the time of original assessment proceedings which culminated in assessment order being framed u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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