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TMI Blog2014 (6) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise, a mere change of opinion on the part of the AO in the course of assessment for a subsequent assessment year would not by itself legitimise reopening of assessment for an earlier year – thus, the order of the reassessment made by the AO u/s 147 of the Act is set aside – Decided in favour of assessee. - ITA No. 693/Hyd/2013, ITA No. 727/Hyd/2013 - - - Dated:- 21-5-2014 - Shri D. Manmohan And Shri Chandra Poojari,JJ. For the Petitioner : Shri A. V. Raghuram For the Respondent : Shri Solgy Jose T. Kottaram ORDER Per Chandra Poojari, A. M. Both these appeals are cross appeals directed against separate orders of CIT(A)-V, Hyderabad, dated 14/02/2013, for the assessment year 2007-08. 2. The assessee has raised the following grounds in its appeal: 1. The order of the AO is contrary to the law, facts and circumstances of the case. 2. The AO ought not to have issued notice u/s 148, based on change in opinion when in fact all the facts of the case were circumstances at the time of the original assessment. 3. The Appellate Commissioner ought not to have held that the notice issued u/s 148 was a valid notice. 4. The AO ought not to have denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee contended that all the information required for assessment proceedings was submitted before the Assessing Officer during the course of original assessment proceedings and he substantiated the claims made in the return with sufficient evidences and accordingly, the income returned was accepted. On the issue of capital gains, it was brought out by the assessee that specific queries were raised about his share of sale consideration and he filed written replies to such queries with necessary evidences. Therefore, it is claimed by the assessee that reopening of the case under section 147 of the Act based on the very information available on record is bad in law and tantamount to change of opinion since no new tangible material was brought out to hold that there is escapement of income. In support of this claim, the assessee relied on the case of GMR Holdings Pvt Ltd. v. DClT reported as 141 Tax Tribunal Judgment at page 338. 7. After considering the submissions of the assessee, the CIT(A) observed that no discussion was found on the issue of capital gains in the original assessment order. In the concluding para of the assessment order, it was held that after discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve heard both the parties, perused the record and gone through the orders of the revenue authorities. In this case, there was no dispute that original assessment was completed u/s 143(3) of the Act on 24/12/2009. Thereafter, notice u/s 148 was issued to the assessee on 25/02/2011 by recording reasons for reopening of assessment as follows: It is noticed form the statement of income, the assessee offered income of Rs. 50 lakhs on sale of land at Gachibowli after claiming land cost and addition though lands were sold for Rs. 2,00,00,000/- as detailed below: S. No. Date of Registration and Consideration extent of area sold received 1 28.09.2006 Ac 0-20.8 gts. 52,00,000 2 28.09.2006, Ac 0-21.6 gts 54,00,000 3 28.09.2006, Ac 0-21.6 gts 54,00,000 4 28.09.2006, Ac 0-08 gts 20,00,000 5 28.09.2006 20,00,000 Total 2,00,00,000 The vendors to the above land were i) P. Pratap Reddy, ii) P. Venkata Lakshmi, iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a International, 348 ITR 485 wherein it was held as follows: One needs to give a schematic interpretation to the words reason to believe failing which, section 147 would give arbitrary power to Assessing Officer to reopen assessments on the basis of mere change of opinion , which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review; he has the power to reassess. But reassessment has to be based on fulfilment of certain pre-conditions and if the concept of change of opinion is removed, as contended on behalf of the Department. then, in the garb of reopening the assessment, review would take place. One must treat the concept of change of opinion as an in-built test to check abuse of power to by the Assessing Officer. Hence, after 1 st April, 1989, the Assessing Officer has power to reopen, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to section 147 of the Act, as quoted her ..... X X X X Extracts X X X X X X X X Extracts X X X X
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