TMI Blog2022 (10) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable to be struck down on the said count itself. Our aforesaid view that as per the mandate of the 1st proviso to Sec. 147 reopening of a concluded assessment beyond four years from the end of the relevant assessment year, inter alia, in the absence of any failure on the part of the assessee to disclose fully and truly all material facts which were necessary for its assessment is not permissible is supported by the judgment of the Hon ble High Court of Delhi in the case of Haryana Acrylic Manufacturing Company [ 2008 (11) TMI 2 - DELHI HIGH COURT] In the case of New Delhi Television Ltd. [ 2020 (4) TMI 133 - SUPREME COURT] had, inter alia, held, that though the assessee is obligated to disclose the primary facts , but it is neither required to disclose the secondary facts nor required to give any assistance to the A.O by disclosure of the other facts and it is for the A.O to decide what inferences are to be drawn from the facts before him. As in the present case before us the assessee had disclosed fully and truly all the material facts, therefore, by no means he could have been saddled with any failure to disclose fully and truly all material facts that were necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstances of the case and in law, initiation of reassessment u/s.147/148 is invalid; bad in law, since it is beyond 4 years and assessment made u/s.143(3) dt.6-12-10 and there is no allegation in the reasons recorded which indicate any failure on the part of the assessee to disclose fully truly all material facts necessary for the assessment made u/s.143(3) dt.6- 12-10; initiation u/s.147/l48 cannot be made as per first proviso to sec147; it is invalid void-ab-initio and is liable to be quashed. 2. The assessee by raising the additional grounds of appeal has sought our indulgence for adjudicating a legal issue, i.e., validity of jurisdiction assumed by the A.O for framing of the impugned assessment. As the adjudication of the aforesaid issue involves purely a question of law which would not require looking any further beyond the facts available on record, therefore, we have no hesitation in admitting the same. Our aforesaid view that where an assessee, had raised, though for the first time an additional ground of appeal before the Tribunal which involves purely a question of law and requires no further verification of facts, then, the same merits admission finds supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem to drive home their respective contentions. 8. As the assessee has assailed the validity of jurisdiction that was assumed by the A.O for framing of the impugned assessment, therefore, we shall first deal with the same. 9. It is the claim of the Ld. Authorized Representative (for short AR ) that the A.O had wrongly assumed jurisdiction and framed the impugned assessment vide his order passed u/s.144 r.w.s. 147 dated 31.03.2015 for two-fold reasons, viz. (i) that the reassessment proceeding had been embarked upon by the A.O merely on the basis of change of opinion ; and (ii) that as the original assessment in the case of the assessee was earlier framed by the A.O u/s.143(3) dated 06.12.2010, therefore, as per the 1st proviso to Sec. 147 in the absence of any failure on its part to disclose fully and truly all material facts which were necessary for its assessment its case could not have been reopened beyond four years from the end of the relevant assessment year. 10. As the Ld. AR has assailed the validity of jurisdiction that was assumed by the A.O for framing of the impugned assessment, therefore, for the sake of clarity on the facts we had directed the Ld. Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings as business income and claiming of interest and remuneration as a deduction against the same was not as per the mandate of law; (ii) there depreciation on truck was wrongly claimed at a higher rate i.e @40%; and (iii) the failure on the part of the assessee to deduct tax at source on interest paid on loan to a non-banking finance company rendered its claim for deduction of the same liable for disallowance u/s 40(a)(ia) of the Act. 11. On a careful perusal of the aforesaid reasons to believe forming the basis for reopening of the assessee s case u/s.147 of the Act, it transpires beyond doubt that the same as stated by the Ld. AR and, rightly so, is nothing but a mere change of opinion of the A.O, on the basis of the same facts as were there before his predecessor while framing of the original assessment u/s. 143(3) dated 06.12.2010. In our considered view, the reopening of a concluded assessment on the basis of same set of facts as were there available on record in the course of original assessment is not permissible under law. Our aforesaid view is supported by the judgment of the Hon ble Supreme Court in the case of Commissioner of Income-Tax Vs. Kelvinator of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain deductions had either been wrongly and/or excessively allowed by his predecessor, thus, for the said reason had reopened its concluded assessment. On the basis of our aforesaid observations, we are inclined to accept the claim of the Ld. AR that as the concluded assessment in the case of the assessee had been reopened by the A.O by issuing notice u/s.148 of the Act, dated 05.02.2014 i.e. beyond four years from the end of the relevant assessment year i.e A.Y 2008-09, therefore, the assessment so framed in absence of valid assumption of jurisdiction on his part could otherwise also not be sustained and is liable to be struck down on the said count itself. Our aforesaid view that as per the mandate of the 1st proviso to Sec. 147 of the Act, the reopening of a concluded assessment beyond four years from the end of the relevant assessment year, inter alia, in the absence of any failure on the part of the assessee to disclose fully and truly all material facts which were necessary for its assessment is not permissible is supported by the judgment of the Hon ble High Court of Delhi in the case of Haryana Acrylic Manufacturing Company Vs. CIT (2009) 308 ITR 38 (Del). Also, a simila ..... 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