TMI Blog2023 (2) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case there appears to be no tangible material with the A.O. as can be seen from the reasons recorded and that the reference was made only to the records of the assessment. It thus appears that between the date of the order of assessment and the date of the issuance of notice, nothing new had happened. There was no new information received by the Assessing Officer nor was any reference made to any new material on record. A.O. was simply attempting to accord a fresh consideration on the issue of deduction under Section 80P of the Act claimed and allowed in favour of the Petitioner. We cannot forget that the order of assessment passed in the case of the assessee was under Section 143(3) of the Act. Petitioner had specifically claimed the deduction u/s 80P which was not only reflected in the return of income but also gone into specifically as can be seen from the notice issued u/s 142(1) of the Act where by the details of various deductions and exemptions along with documentary evidence had been sought for by the A.O., which finally led to the passing of the order of assessment where by while certain disallowances were made in respect to certain items, the claim of deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 148 of the Act dated 30th March, 2021 was issued. 3. The reasons furnished to the Petitioner for reopening are as under: 1. The assessee filed return of income for A.Y. 2013-14 on 31st July, 2013 declaring total income at Rs.11,39,990/-. The case was assessed u/s 143(3) of the I. T. Act, 1961 on 03.03.2016 determining total income at Rs.5,66,92,310/-. 2. It is observed from the records that during the assessment year under consideration, the assessee had earned interest income of Rs.2,61,60,090/- from the investments made in fixed deposits in co-operative Banks. The deduction of the amount was claimed by the assessee and allowed by the AO u/s 80P of the I. T. Act. As per section 80P(2)(d), the interest income derived from its investments with any other co-operative societies is eligible for deduction. In the instant case, the interest income has been derived from investments made in Cooperative Banks which does not fall under purview of Cooperative Society. As per Balance Sheet, the investments were made in Shamrao Vithal Co-op. Bank, Cosmos Co-op. Bank, Saraswat Co-op. Bank and Maharashtra Co-op. Bank. The assessee in its computation of total income claimed deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner were rejected vide order dated 10th March, 2022. 5. Learned Counsel for the Petitioner has, during the course of his arguments, reiterated the stand as was taken in the objections before the A.O. Counsel for the Respondents Mr. Sharma has reiterated the stand of the revenue as reflected in the order disposing of objections, dated 10th March, 2022, further supported and buttressed by the reply filed by the Respondents to that extent. 6. Broadly stated the power of an A.O to reopen an assessment falls under two categories i.e. reopening within a period of four years from the end of the relevant assessment year and a reopening after four years from the end of the relevant assessment year. Insofar as the reopening within a period of four years from the end of the relevant assessment year is concerned, the A.O. can reopen if he has reason to believe that income chargeable to tax has escaped assessment. Beyond the period of four years, the A.O. has to additionally be satisfied that in a case where an assessment under Section 143(3) of the Act had been completed, the assessee had failed to disclose fully and truly all material facts necessary for assessment during the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd truly material facts, it failed to identify as to what was that material fact which was not disclosed by the assessee which if so disclosed could have prevented the escapement of income. The alleged failure to disclose appears to be nothing but a statement to somehow overcome the hurdle of reopening the assessment beyond four years. Apart from the above, the A.O. could have proceeded to reopen the assessment only if he had reason to believe that income had escaped assessment . 9. In CIT V/s. Kelvinator of India Ltd. [2002] 123 Taxman 433 (Delhi). the Supreme Court held: The Assessing Officer has no power to review; he has the power to reassess. But reassessment has to be based on fulfllment of certain precondition and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of re-opening 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 1-4-1989, Assessing Officer has power to reopen, provided there is tangible material to come to the conclusion that there is escapement of income fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the reference was made only to the records of the assessment. It thus appears that between the date of the order of assessment and the date of the issuance of notice, nothing new had happened. There was no new information received by the Assessing Officer nor was any reference made to any new material on record. The A.O. was simply attempting to accord a fresh consideration on the issue of deduction under Section 80P of the Act claimed and allowed in favour of the Petitioner. 12. We cannot forget that the order of assessment passed in the case of the assessee was under Section 143(3) of the Act. The Petitioner had specifically claimed the deduction under Section 80P of the Act which was not only reflected in the return of income but also gone into specifically as can be seen from the notice issued under Section 142(1) of the Act where by the details of various deductions and exemptions along with documentary evidence had been sought for by the A.O., which finally led to the passing of the order of assessment where by while certain disallowances were made in respect to certain items, the claim of deduction under Section 80P was allowed. It is settled law that if a query is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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