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TMI Blog2012 (9) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on 28/3/2003 for the assessment year 2000-01, thus the issue on which the assessment is being sought to be reopened was considered by the AO and accepted by his order dated 28/3/2003. The present proceedings emanating from the notice dated 28/12/2004 under Section 147/148 is bad in law as the same is based on mere change of opinion - no failure to disclose fully and truly all material facts on the part of the assessee and due consideration of the same was done before passing the assessment order dated 28/3/2003 - against Revenue. - INCOME TAX APPEAL NO.4081 OF 2010 - - - Dated:- 8-7-2012 - S.J.VAZIFDAR M.S. SANKLECHA, JJ. Mr.Vimal Gupta,Advocate for the Appellant. Mr. J.D.Mistri Sr. Counel along with Mr. P.C.Tripathi i/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany as participating promotor's investment. The Company is of the opinion that such difference is not required to be credited to the Profit and Loss Account and treated as Capital Reserve. b) During the course of the assessment proceedings on specific query the respondent-assessee by its letter dated 7/3/2003 pointed out that the sale of shares has been correctly credited to the reserve account and further in view of the Apex Court decision in the matter of Apollo Tyres Ltd. v. CIT reported in 255 ITR 273, the Assessing Officer for the purpose of computing book profit under Section 115JB cannot go behind the the net profit shown in the profit or loss account as a starting point for computing book profit. The Assessing officer accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /12006 the Assessing officer passed an order under Section 143(3) read with Section 147 of the Act for assessment year 2000-01 holding that profit on sale of investment amounting to Rs.29.52 lacs should form a part of the profit and credited to the profit and loss account for the purpose of computing the book profit under Section 115JA of the Act. d) On appeal, the Commissioner of Income Tax (Appeals) on consideration of all the facts set aside the order of the Assessing Officer dated 10/2/2006 by holding that in view of the decision of the Supreme Court in the matter of Apollo Tyres Ltd. (supra) the Assessing officer could have no reason to believe that the income had escaped assessment. Further, he held that the profits as shown in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a power to review an assessment as held by the Apex Court in the matter of Commissioner of Income Tax Vs. Kelvinator India Limited 320 ITR 561. Under Section 147 of the Act the Assessing officer has power to reassess, however he has no power to review. The power to reassess has to be exercised only on fulfilment of certain pre conditions such as tangible material to come to a conclusion that there has been escapement of income. In the present notice, it is an admitted position that facts had been disclosed and the Assessing Officer passed his order of assessment on 28/3/2003 for the assessment year 2000-01. Further, the issue on which the assessment is being sought to be reopened was considered by the Assessing Officer and accepted by his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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