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TMI Blog2011 (5) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment is set aside and the finding of the appellate authority confirming the order of the assessing officer reopening the order was justified is restored - Decided in favor of revenue. - IT APPEAL NO. 1285 OF 2006 - - - Dated:- 26-5-2011 - V.G. SABHAHIT AND RAVI MALIMATH, JJ. K.V. Aravind and M.V. Seshachala for the Appellant. D.S. Anirudha for the Respondent. JUDGMENT V.G. Sabhahit, J This appeal by the revenue has been admitted for consideration of the following substantial question of law: "Whether the Tribunal was right in holding that the assessing authority cannot reopen the proceedings in relation to the escaped income in exercise of the powers under Section 147 of the Act and whether the same amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the total value and not 10% as claimed by the assessee as per Section 32(1), of the Income Tax Act, according to Explanation 5 to Section 43(1) of the Act. The assessing officer further held that an amount of Rs. 1,28,638/- is liable to be disallowed and added back to the total income of unexplained expenditure under Section 69 of the Income Tax Act and accordingly passed an assessment order. Being aggrieved by the same, the assessee filed an appeal before the Commissioner of Income Tax (Appeals)-IV, Bangalore in ITA No.69 R-8 CIT(A)IV/2004-05 and the said appeal was dismissed by the appellate authority. Being aggrieved by the same, the assessee preferred an appeal before the Income-Tax Appellate Tribunal, Bangalore, in ITA 1417/Bang/2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment order valid reasons were given by the assessing officer and it was not a mere change of opinion or on the basis of suspicion reopening of the case gets vitiated and the same was confirmed by the appellate authority and the order of the Tribunal is contrary to the material on record and therefore it is liable to be set aside. The Tribunal has not gone into the merits of the claim of the parties. 4. The learned counsel appearing for the respondent submitted that the reasons assigned by the assessing officer which has been confirmed by the appellate authority is only a mere change of opinion or suspicion and there is no ground made out for reopening the order of assessment and therefore the order of the Tribunal is justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the perusal of the observations made by the assessing officer regarding the reasons for reopening the assessment that he has assigned detailed reasons about the depreciation claim in respect of building, under Section 32(1) of the Act, at 10% though it was only 5% to be admissible as per the Section and in respect of income of Rs. 60,000/- the total expenditure of Rs. 13,16,142/- was shown and deduction available under Section 24 was for the Municipal taxes and 1/4th for repairs and interest on borrowed capital. The said finding on the question of fact has been affirmed by the appellate authority. However, the Tribunal has proceeded to interfere with the concurrent finding on the question of fact on the ground that the reopening of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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