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TMI Blog2013 (7) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 (1) TMI 11 - SUPREME COURT OF INDIA)& E.I. Dupont India Pvt. Ltd., & Another Vs. DCIT., (2013 (2) TMI 406 - DELHI HIGH COURT). Thus agreeing with the CIT(Appeals) that there was no failure on the part of the assessee in disclosing fully and truly all material facts necessary for completion of assessment - In favour of assessee. - ITA No.1833/Mds/2012 - - - Dated:- 7-5-2013 - Shri N. S. Saini And Shri Challa Nagendra Prasad,JJ. For the Appellant : Mr. N. Madhavan, JCIT For the Respondent : Mr. T. Vasudevan, Advocate ORDER Per Challa Nagendra Prasad, JM :- This is an appeal filed by the Revenue against the order of the Commissioner of Income Tax (Appeals)-IX, Chennai dated 11.6.2012 in ITA No.286/11-12 for the assessment year 2004-05. The only grievance of the Revenue in this appeal is that the Commissioner of Income Tax (Appeals) erred in holding that reopening of assessment under section 147 is invalid. 2. Brief facts of the case are that the assessee is a partnership firm engaged in the business of manufacturing of silencers and noise control equipments. For the assessment year 2004-05, the assessee filed return on 31.10.2004 admitting loss of Rs. 44,91 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 79,545/- installed in its new unit and achieved turnover of Rs. 5,00,12,972/- by employing plant and machinery worth of Rs. 79,545/- and it is impossible to believe that the assessee was able to achieve that higher turnover by utilizing the plant and machinery worth Rs. 79,545/- only. The assessee should have utilized the facilities available in its DTA units for manufacturing its products in the 100% EOU without which achieving such a higher turnover is not possible. One more reason for reopening the assessment was that the assessee had outsourced its production by giving job work to third parties. The Departmental Representative further submits that the assessee even otherwise is not entitled to deduction under section 10B, since the assessee did not bring the entire foreign exchange into India within the time specified. The Departmental Representative submits that foreign exchange to the extent of Rs. 1,38,13,188/- out of exports was actually received in the previous year relevant to the assessment year 2005-06, but not in the assessment year under consideration i.e. 2004-05. Therefore, he submits that the Assessing Officer is justified in reopening the assessment and denying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Moser Baer India Ltd., Vs. DCIT in W.P (C) No.7677/2011 dated 6.12.2012 (2012 (12) TMI 456 in support of his submissions. A copy of the order is placed on record. 6. Heard both sides. Perused the orders of the lower authorities. In this case the original assessment was completed under section 143(3) on 1.6.2005. The reassessment under section 143(3) read with section 147 was completed on 28.12.2011. Admittedly, the reassessment was made beyond four years from the end of the relevant assessment year, since the reassessment was made beyond four years from the end of the relevant assessment year, the proviso to section 147 is applicable, as per which no action under section 147 shall be taken after expiry of four years from the end of the relevant assessment year unless any income chargeable to tax has escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for completion of the assessment. The submission of the assessee was that it had filed all the information fully and truly for completion of the assessment based on which assessment under section 143(3) was made allowing the claims of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year. 7.2 Moreover, It is seen from the assessment order that the Assessing Officer has not made out a case that there has been failure on the part of the appellant in disclosing all the materials that are necessary for making assessment u/s.143(3). Secondly, the Assessing Officer has not brought on record any new material evidence to show that there was a failure on the part of the appellant that necessitated to reopen the assessment u/s.147. 7.3 Therefore, it is clear from the assessment order that the AO has reopened the assessment on the basis of the material which is already available on record. Therefore, the AO has no jurisdiction to reopen the assessment after four years from the end of the relevant assessment year which amounts to reopening of assessment on change of opinion which is not valid as per law. In the case of on vs. Annamalai Finance Ltd.(2005) 287 ITR 25, the Hon'ble Madras High Court held that mere change of opinion did not provide jurisdiction to the AO to initiate proceedings u/s 147 of the Act. Further, in the case of CIT vs. Dinesh Chandra H. Shah 82 ITR 367 (SC), the Hon'ble Supreme Court held that the AO cannot take any action u/s 147 mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in disclosing fully and truly all material facts necessary for completion of assessment. The Assessing Officer did not point what details or material facts necessary for completion of assessment, the assessee had failed to disclose in the course of original assessment proceedings. On going through the orders of lower authorities and materials placed before us, we find that the Assessing Officer has merely reopened the assessment based on the materials which are already available on record and it is mere change of opinion and in case of change of opinion based on the facts already available on record, reassessment is not permissible under section 147, in view of the judgment of Hon'ble Supreme Court in the case of CIT Vs. Kelvinator of India Ltd. (320 ITR 561). Recently, the Hon'ble Delhi High Court in the case of E.I. Dupont India Pvt. Ltd., Another Vs. DCIT., (351 ITR 299) held as under:- "We have heard the learned counsel for the parties and we feel that since this was a case of proposed reopening of assessment after four years from the end of the relevant assessment year it was incumbent upon the Assessing Officer to demonstrate that thee was failure on the part of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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