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TMI Blog2013 (12) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... itment charges holding the same to be capital expenditure as against revenue expenditure claimed by the assessee. 4. On the facts and in the circumstances of the case, the ld. CIT(A) has erred in deleting the addition of Rs.1,01,92,476/- made by the Assessing Officer on account of rent received and the same under the head "Income from House Property" under section 22 of Income House Property." Ground No.2 3. Apropos ground no. 2, ld. DR submitted that the Commissioner of Income Tax(A) was not justified and grossly erred in holding that the reassessment proceedings cannot survive on the test of judicial scrutiny and hence, the same were not sustainable on the ground that the initiation of reassessment proceedings were based on change of opinion. The DR pointed out that the notice u/s 148 of the Income Tax Act, 1961 (for short the Act) has been issued in accordance with clause (b) of Section 149(1) r/w proviso to section 151(1) of the Act. The DR also contended that after recording reasons, the Assessing Officer obtained sanction of Commissioner of Income Tax, Central-I, New Delhi in accordance with proviso to section 151(1) of the Act prior to issuance of notice u/s 148 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 147 and 148 of the Act, which read as under:- "Reasons recorded It is seen from records that the assessee company has claimed commitment charges paid at Rs.2,35,33,141/- which are not admissible. Moreover, no Tax has been deducted from such payments. Further the assessee has set off rent earned at Rs.1,45,60,668/- from the rent paid at Rs.2,07,74,391/- whereas income from house property should have been set off against any loss/rent paid. In computing income from house property, the assessee was required to compute deduction under section 24 of Income Tax Act 1961 at 30% of ALV/Rent received. The income chargeable to tax has escaped assessment by reason of failure on the part of the assessee and to disclose fully and truly all material facts necessary for the assessment. Therefore, I have reason to believe that income as mentioned above has escaped assessment. Accordingly, notice issued under section 148 of Income Tax Act, 1961." 6. From a mere perusal of the reasons recorded as reproduced hereinabove, we observe that the Assessing Officer has agitated the point of commitment charges and rent and concluded that the income chargeable to tax has escaped assessment b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant on payment of commitment charges in evidence of which copies at form number 16 issued by the appellant have been filed. The appellant has filed detailed submissions on the papers and explanations were filed before the assessing officer in original assessment proceedings and are reproduced in paras 5.1.9 to 5.1.29 here in above. 6.5.1 So far the objections to the re-opening by the appellant is concerned, it is desirable to dispose them off within a reasonable time. The Assessing Officer though had not dispose them off by an interim order nevertheless he has dealt with the objections in third para of the assessment order. From the aforesaid facts it is evident that all the details regarding payment of commitment charges, details of rent received/ paid were available with the assessing officer at the time of original assessment proceedings and assessing officer had made conscious decision of accepting the details filed by the appellant. In my opinion the attempt now made by the assessing officer is nothing but a change of opinion. 6.5.2 In a recent case of the appellant dated 10.04.2012 for the assessment year 2005-2006, Hon'ble High Court of Delhi in WP (C) 8292/2010 has hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation of Hon'ble apex court in the case of Indo Aden Salt Manufacturing and trading co. (p) Ltd., vs C.I.T. 159 ITR 634 (SC) as under:- "The assessee's contention is that the Income Tax Officer could not have found out the position by further probing. That, however, does not exonerate the assessee to make full disclosure truly. Explanation 2 to section 147 of the Act makes the position abundantly clear. The principles have also been well-settled and reiterated in numerous and decisions of this count: See Kantamani Venkata Narayana & Sons V. First ITO [1967} 63 ITR 63 (SC) and ITO V. Lakhmani Mewal Das [1976} 103 ITR 437. (SC). Hidayatullah, J. as the learned Chief justice then was observed in Calcutta Discount Co.'s case (1961) 41 ITR 191 (SC) that mere production of evidence before the Income Tax Officer was not enough, that there may be omission or failure to make a true and full disclosure, if some material for the assessment lay embedded in the evidence which the Revenue could have uncovered but did* not, then it is the duty of the assessee to bring it to the notice of the assessing authority. The assessee knows all the material and relevant facts - the assessing authority m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the queries of the Assessing Officer. In support of the submissions, the assessee enclosed copies of the detail of commitment charges paid by the assessee during the year under consideration which are placed at page no. 87-90 of the Paper Book. Copies of the rental receipts and rental payments were also filed by the assessee during the assessment proceedings which are placed at page 91-96 of the Paper Book and written submissions filed by the assessee dated nil were also placed before the Assessing Officer which are available at page 81-82 of the paper book. Thus, it cannot be said that the assessee failed to submit or disclose fully and truly all material facts necessary for assessment. We are not in agreement with the findings of the Assessing Officer that there was a failure on the part of assessee to disclose fully and truly all material facts and the Assessing Officer had reason to believe that the income chargeable to tax has escaped assessment due to this reason. In view of discussions made hereinabove, we are of the considered opinion that the Commissioner of Income Tax(A) rightly held that the assumption of jurisdiction u/s 147 and 148 of the Act was based on change ..... 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