TMI Blog2023 (9) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... rding reasons or in the notice u/s. 142(1) of the Act by the Ld.AO. Thus the facts which was available during the regular assessment and duly verified and examined by the Ld.AO, reopening on the same set of facts is nothing but a clear case of change of opinion as submitted by the Ld.AR appears to be acceptable. We find that in the case in hand, the allegation of the assessing officer to disclose fully or truly of material facts for assessment for the year under consideration or the income chargeable to tax has escaped assessment for the year under consideration has no legs to stand upon. Moreso, once the issue has already been dealt with during the original assessment proceeding and only upon due application of mind and upon examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant duly made objections dated 28.10.2014 before the Ld.AO on merit on two counts as raised by him, the Ld.AO proceeded with the reassessment proceeding without first disposing of the said application preferred by the assessee dated 28.10.2014. As the Assessing Officer is bound to dispose of the said objection by passing a speaking order but proceeded to pass the order of assessment, the entire proceeding is not in terms of the statutory provisions and the impugned order is, therefore, bad in law and liable to be quashed. Secondly, it was argued by the Ld. Advocate appearing for the assessee that the issues as raised by the Ld.AO while reopening assessment u/s. 148 of the Act were already been dealt with during the original assessment pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also perused the relevant materials available on record including the orders passed by the authorities below in different stages. 5. The brief facts leading to this case is this that the appellant filed its original return of income declaring total income at Rs. 1004,29,76,670/-. Notice u/s. 143(2) was issued and served upon the appellant; followed by a revised return on 18.03.2011 declaring total income at Rs. 1004,00,57,290/-. The appellant duly complied with all the notices by furnishing required information and documents as called for by and under the submissions dated 09.06.2011. By and under a further notice dated 07.06.2011 u/s. 142(1), the assessee was directed to submit the information relating to the deduction claimed u/s. 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the reassessment proceeding and finalised the same with the order as above. Upon perusal of the order passed by the Ld.AO, it appears that the Ld.AO duly mentioned the said objection dated 28.10.2014 made by the appellant to the initiation of the proceeding u/s. 148 of the Act; such observation is appearing at page 2, paragraph 3 of the assessment order. Once the Assessing Officer has taken note of the said objection filed by the appellant and mentions the same in the assessment order itself, we do not find any reason to undo the reassessment proceeding merely because of the observation has not been made independently before proceeding with the reassessment proceeding by the Ld.AO. Infact, we decline to accept such contention made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the knowledge of the Assessing Officer subsequent to the original assessment proceeding is reflecting in recording reasons or in the notice u/s. 142(1) of the Act by the Ld.AO. Thus the facts which was available during the regular assessment and duly verified and examined by the Ld.AO, reopening on the same set of facts is nothing but a clear case of change of opinion as submitted by the Ld.AR appears to be acceptable. 12. In this regard, we have also dealt with the judgment passed by the Hon ble Supreme Court in case of CIT vs. Kelvinator of India Ltd. (supra). While affirming the decision of the Full Bench of the Hon ble Delhi High Court, the Hon ble Apex Court was pleased to observe as follows: Prior to the Direct Tax Laws (Amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be based on fulfilment of certain pre-conditions 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 1-4- 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' but also inserted the word 'opinion' in section 147. However, on receipt of repres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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