TMI Blog2010 (1) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 held the same not to be taxable, after recording a finding that it was nothing but diversion of income by overriding title – held that - holding that initiation of the proceedings in question was based entirely on change of opinion, we find that the re-assessment proceedings are without jurisdiction. The notices under Section 147/148 of the said Act and the proceedings pursuant thereto stand quashed - 13603/2004 - - - Dated:- 25-1-2010 - MR. BADAR DURREZ AHMED and MR. SIDDHARTH MRIDUL, JJ. For the Petitioner: Mr Rajiv Tyagi with Ms Chanchal Biswal For the Respondent: Mr Sanjeev Sabharwal JUDGEMENT BADAR DURREZ AHMED, J (ORAL) This writ petition concerns three assessment years-1997-98, 1998-99 and 1999-2000. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year 1996-97, the Income Tax Appellate Tribunal took a similar view in favour of the assessee by virtue of its order dated 27th October, 2000. The Revenue preferred an appeal against the same which is pending before this Court. 5. The original assessment order was passed in respect of three assessment years in question namely 1997-98, 1998-99 and 1999-2000 on 28th March, 2002. In each of the assessment orders pertaining to each of the three assessment years the TIUF has been specifically noticed by the Assessing Officer. He had brought the interest on such amount to tax but had not taxed the amount transferred to the TIUF. We may also point out that in the course of the assessment proceedings in respect of the three years in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exed to and forming part of the Accounts, it has been mentioned that "Funds provided by the government or funds diverted to "Transportation Infrastructure Utilization Fund" from sale proceeds of Country Liquor, as per the obligatory requirements of the government of NCT of Delhi, are utilized for constructing flyovers and pedestrian facilities in Delhi and meeting establishment and other administrative expenses of Engineering Wing specially created for the purpose. In this regard the amount of retail margins to be diverted is being decided by the state government from time to time." In the assessment orders for AY 1990-91 1991-92, 92-93, 94-95 96-97, the amount transferred to TIUF was disallowed by the than AO. While disallowing the same, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g order be passed. Thereafter, the speaking orders dated 26th July, 2004 have been passed in respect of each assessment years in question. 8. We have examined the purported reasons, as well as the objections and the speaking order and have also heard counsel for the parties. We are of the view that the reopening of the completed assessments amounted to a mere change of opinion, which is not permissible as per the settled legal principles. The Assessing Officer had clearly applied his mind to the setting apart of Rs 5/- per bottle for the purpose of the TIUF. This is evident from a plain reading of the original assessment order itself as well as from the query and the detailed answer given by the petitioner with regard to the said fund. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The latest decision being of the Supreme Court in Civil Appeal No.2009-2011 of 2003 and Civil Appeal No. 2520 of 2008 decided on 18th January, 2010 which approves this Court‟s Full Bench decision in the case of Commissioner of Income Tax vs. Kelvinator of India Limited:256 ITR 1 (Del.) (HC). The power of re-assessment is different from the power of review. The Assessing Officer has been given the power to re-asses under Section 147 upon certain conditions being satisfied. The Assessing Officer does not have the power of review. If a change of opinion were to be permitted as a ground for re-assessment then it would amount to granting a licence to the Assessing Officer to "review" his decisions, which power he does not have. 11. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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