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TMI Blog2013 (6) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal." 2. We have heard rival arguments of both the parties and carefully considered the record placed before us. 3. From the reassessment order, we observe that the case was reopened u/s 147/148 of the Income Tax Act (for short the Act) after recording reasons for reopening the case as follows:- "The return of income was filed on 18.10.2004 for the A. Y. 2004-05 declaring an income of Rs.62,86,310/-. Subsequently the assessment u/s 143(3) was completed on 21.12.2006 at the returned income of &.62,86,310/-. During the year, the assessee has shown Rs. 1,24,75,7751- as rent received and has claimed deduction, @ 30% on it u/s 24 of the Act. Perusal of TDS shows that out of the above rental income, Rs. 93,45,0001- has been received from PVR Ltd. in support of its contention the assessee has submitted, the agreement between the PVR and the assessee. An examination of the agreement reveals the following observations. i. The assessee has offered its already running business to the PVR As per the agreement as clause 1.1 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le under the head "Income from House Property but Income under the head "Other Sources. Thus by showing &.93,45,000/- of income as "income from house property "instead of "income from other sources" or "Business income" of it and consequently claiming the 30% deduction as per section 24 of the I. T. Act. 30% of &.Rs.93,45,000/- i.e. Rs..28,03,500/- has been escaped assessment which would have been otherwise chargeable to tax, making it the case of under assessment as per explanation 2 (c) (i) of section 147 of the I.T. Act, 1961. Therefore, I have reason to believe that income chargeable to tax amounting to. Rs.28,03,500/- has escaped assessment in A. Y. 2005-06. Therefore. I am satisfied that it is a fit case for reopening the case u/s 148 and issue of notice u/s 148 of the I. T. Act, 1961": 4. The Assessing Officer considered the objections of the assessee and disposed of the same with an order dated 08.12.2010 complying the decision of Hon'ble Supreme Court in the case of G.K.N. Driveshafts (India) Ltd. vs ITO (259 ITR 19)(SC) and held that after 1st April, 1989, the Assessing Officer has the power to reopen the assessment provided there is a tangibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r may be set aside by restoring that of the Assessing Officer on the issue of reopening of assessment. 8. Replying to the above, ld. counsel of the assessee placed his reliance on the judgment of Hon'ble Jurisdictional High Court of Delhi in the case of Commissioner of Income Tax vs Raj Kumar Mahajan (2012) 340 ITR 570 (Del), Ranbaxy Laboratories Ltd. vs DCIT (2013) 30 Taxmann.com 410 (Del) and the decision in the case of DCIT vs Pasupati Spinning & Weaving Mills Ltd.(2012) 20 Taxmann.com 160 (Del) and submitted that when the original assessment proceedings have been completed u/s 143(3) of the Act by making detailed query regarding the claim of the assessee, then subsequently on the same material, assessment cannot be reopened because it would amount to change of opinion on the same material. The counsel further submitted that in the present case, the assessee submitted all details of his income during the original assessment and the assessee rightly claimed receipts from PVR Ltd. as income from house property because these receipts were not income from other sources or business income. The counsel vehemently submitted that the action of the Commissioner of Income Tax(A) is justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue raised under section 148 of Act is nothing but a "change of opinion" and hence the proceedings initiated under section 148 of Act are bad in law - cannot be rejected. 4.7 Further, it is submitted by the ld. AR that for A.Y 2004-05 the assessment had originally been completed u/s 143(3) and the notice u/s 148 of Act was issued on 31.03.2010, i.e. after lapse of four years from the end of the relevant assessment year. Therefore, the condition provided in first proviso to section 147 of Act needs to be satisfied. The first proviso to section 147 stipulates that no action u/s 147 can be taken in case assessment has been completed u/s 143(3) of Act after expiry of four years from the end of relevant assessment years unless income chargeable to tax has escaped the assessment by reason of failure on the part of the assessee to make a return u/s 139 or in response to a notice issued under sub-section 1 of section 142 or section 148 or to disclose fully and .truly all material facts necessary for assessment, for that year. The AO has, however failed to make out any case of lack of full and true disclosure of material facts by the appellant in the reasons recorded for reope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commissioner of Income-tax Central Circle-8, New Delhi." I find that on similar facts, it was held by the Hon'ble ITAT Delhi in Dy. CIT v. Pasupati Spinning & Weaving Mills Ltd. [2010] 6 ITR (Trib.) 689 that where Assessing Officer who was very much satisfied with details, documents and explanation furnished by assessee and framed original assessment, but due to audit objection he was forced to change opinion, although he himself did not agree with objection raised by audit team, reassessment was not justified. 4.9 In view of the discussion as above and respectfully following the judicial decisions cited supra, I find that the reassessment proceedings for the years under consideration cannot be factually and legally sustained. In view of the above, the impugned reassessments for the years under consideration are annulled." 10. In view of above discussion, we are of the considered opinion that the Assessing Officer reopened the assessment and issued notice u/s 148 of the Act on the same material which was placed before him during the original assessment u/s 143(3) of the Act. We also observe that the Assessing Officer ..... 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