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TMI Blog2024 (7) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment in view of proviso to section 147 of the Act. For this, Revenue has raised the following effectives ground Nos. 2 to 4:- (2) The Ld.CIT(A) has erred in holding that the Assessing Officer has failed to point out failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment when the relevant columns in Form 3CD have been filled in NIL' or left blank. (3) The ld.CIT(A) has failed to appreciate the fact that the reopening of assessment beyond four years is permissible under law on the basis of factual error or omission pointed out by the audit party as held by the Hon'ble Apex Court in the case of P.V.S.Beedies Pvt Ltd (1999) 237 ITR 13 (SC). (4) The decision of Ld. CIT(A) is in contravention to explanation 2(c)(i) & (iv) of Section 147 of the IT Act in the assessee's case. The said proviso prescribes that it shall be deemed to be cases of income chargeable to tax has escaped assessment for the purpose of Section 147, where an assessment has been made but income chargeable to tax has been under assessed and excessive loss or depreciation allowance or any other allowance has been computed under the IT Act. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of opinion certainly does not confer the jurisdiction on the AO to commence the proceedings of re-assessment u/s 147. While deciding so, I rely upon the decision of Hon'ble Supreme Court in the case of CIT Vs Kelvinator of India Ltd (2010) 320 ITR 561 (SC), wherein it was decided that distinction has to be made between the power to review and power to reassess. Conferring power on the AO to initiate the process of reassessment on the basis of change of opinion will amount to giving the power of review to the AO which is contrary to the scheme of the IT Act. Accordingly it was decided that AO cannot assume jurisdiction to re-assess on the basis of change of opinion on same set of facts. As there is complete absence of any new information in the hands of the AO the assumption of jurisdiction to re-assess is decided to not to be as per law. Secondly, the AO has also failed to point out the failure on the part of the assessee in making full disclosure of primary facts as it is held to be mandatory as per the first provisio to section 147 of IT Act. This issue inter-alia came for adjudication of Hon'ble Supreme Court recently in the case of NDTV vs DCIT CA no.1008 of 2020. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial facts necessary for its assessment for the relevant assessment year 2012-13. We noted the reasons recorded, copy of which was placed before us and the relevant reasons reads as under:- (a) It was noticed from the Profit and Loss account of the assessee for the year ended 31-03-2012 that the assessee had debited Rs. 6,30,000/- as house rent paid. The house rent was paid to one Shri Nagesh and the assessee had deducted TDS for the amount of Rs. 5,40,000/- only and TDS was not deducted for the amount of Rs. 90,000/- and it required to be disallowed u/s. 40(a) (ia) of IT Act. (b) The assessee had debited Rs. 9, 79,125/- as building maintenance to the Profit and Loss account which includes Rs. 7,50,000f- paid to Shri Nagesh as loan amount. As the payment was paid by way of loan it was not an allowable business expenditure and requires to be disallowed. (c) The assessee had paid Rs. 2,87,189/- to NM/s. Flame Advertisement and claimed it as advertisement expenditure. However, the assessee had not deducted TDS for the above payment and it requires to be disallowed. (d) The assessee had debited consulting chares, interpretation charges, lab testing charges and reporting charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Foramer France vs. CIT, reported in (2001) 247 ITR 436 by observing as under:- 14. Having heard learned counsel for the parties, we are of the view that these petitions deserve to be allowed. 15. It may be mentioned that a new Section substituted Section 147 of the Income-tax Act by the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1, 1989. The relevant part of the new Section 147 is as follows : "147. If the Assessing Officer, has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this Section and in sections 148 to 153 referred to as the relevant assessment year) : Provided that where an assessment under Sub-section (3) of Section 143 or this Section has been made for the relevant assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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