TMI Blog2010 (1) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... leted the addition - held that - There has been no failure on the part of the assessee to fully and truly disclose the relevant material. Therefore, the reopening of the assessment was beyond the jurisdiction of the Assessing Officer. We note that it was a case of mere change of opinion and that is not permissible for the purposes of invoking jurisdiction under Section 147 of the Act. – Decided in favor of assessee - 239/2008 - - - Dated:- 20-1-2010 - MR. BADAR DURREZ AHMED MR. SIDDHARTH MRIDUL, JJ. Appellant through: Ms Suruchi Aggarwal Respondent through: Mr Ashish Mohan BADAR DURREZ AHMED, J (ORAL) In this appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act‟), the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and required information from the assessee on the very aspect of prior period expenses. The assessee had submitted the information as well as answered the queries which were raised by the Assessing Officer. One of the answers given to a query raised by the Assessing Officer was as under:- "Some of the expenses were received after the closure of book of the relevant accounting year and could not be accounted in that year. They were therefore accounted for in the subsequent year. We confirm that these expenses have not been claimed by us/allowed to us in any earlier year. Similar expenses have been allowed to us in the preceding assessment years 1996-97." 6. From the above it is clear that the issue of prior period expenses was in conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing, which took place on 24.1.2000 in respect of the assessment proceedings. Hence, information/details regarding the previous year‟s expenses were again furnished by the assessee before the Assessing Officer on the demand of the Assessing Officer. It is clear the assessee filed details along with vouchers which fact also establishes that it was only after examination of these details and after application of mind, the Assessing Officer did not make further queries. Had he not applied the mind, then he would not have called for further details. On the direction of the Assessing Officer, the assessee filed plant-wise and year-wise details. Details of prior year‟s expenses are available at pages 103 to 111 of the paper book. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied his mind to all the material that was available to him at the time of framing of the assessment order. She also placed reliance on the said decision to submit that action under Section 147 was permissible, even if the Assessing Officer gathered his reason to believe from the very same record as has been the subject matter of the completed assessment proceedings. 10. We find that there appears to be some conflict between the decision in Consolidated Photo and Finvest Ltd.(supra) and Commissioner of Income Tax v. Kelvinator of India Ltd.: 256 ITR 1(Del), which was a Full Bench decision of this Court. In the Full Bench decision, it was specifically observed that when a regular order of assessment is passed in terms of Section 143(3) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition 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." 12. We have already found that the present case is one of a mere change of opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We cannot also ignore the word necessarily‟ which has been used in the said Explanation 1. The legislature, by using the said word has made it clear that production of account books etc may amount to disclosure though not necessarily‟ so in every case. Whether the production of books of accounts and other evidence amounts to the kind of disclosure contemplated in Section 147 would have to be determined in the facts and circumstances of each case. In the present case, we have seen that there was no failure on the part of the assessee to make a full and true disclosure. 15. In view of the foregoing discussion, we are in complete agreement with the conclusions arrived at by the Tribunal. In any event, the conclusions have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
