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TMI Blog2014 (8) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... d after a detailed examination by the AO, the succeeding AO cannot resort to the proceedings of reopening - the remedy for mistakes of the AO, if any, may be available under other provisions of the Act, but certainly review of the very same material by the succeeding AO to take a different view is not available with the AO in the garb of reassessment - the reopening of the reassessment in the is unsustainable – Decided in favour of Assessee. - ITA No. 3042/Ahd/2011, ITA No. 3009/Ahd/2011 - - - Dated:- 8-8-2014 - Shri Mukul Kr. Shrawat And Shri N. S. Saini,JJ. For the Petitioner : Shri Roopchand, Sr. DR For the Respondent : Shri Sanjay R. Shah, AR ORDER Per Shri N. S. Saini, Accountant Member: These are the cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as per Rule 8D. The Hon. ITAT has also held that though Rule 8D was inserted with effect from 24.03.2008, it would have retrospective effect. Thereafter, the assessment u/s. 147 of the Act was completed on 15.12.2010 wherein the Assessing Officer disallowed ₹ 30,91,180/- u/s. 14A of the Act. The assessee challenged the validity of reopening of the assessment on the above stated ground unsuccessfully before the Commissioner of Income Tax (Appeals). 4. Before us, the argument of the Authorized Representative of the assessee was that the Hon ble Bombay High Court in the case of Godrej Boyce Mfg. Co. Ltd. Vs. DCIT (2010) 328 ITR 81 (Bom) has overruled the decision of the Mumbai Special Bench of the Tribunal in the case of Daga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 20.10.2008 whereas the original assessment in the instant case u/s. 143(3) was made on 30.12.2008. Therefore, the said decision cannot be held as tangible material which came into existence after completion of original assessment u/s. 143(3) of the Act. We find that the Hon ble Supreme Court in the case of CIT Vs. Kelvinator of India Limited (2010) 320 ITR 561 (SC) has approved the full bench decision of the Hon ble Delhi High Court reported in 256 ITR 1 (Del) wherein it was held that power to review cannot be invoked in the garb of reassessment. It was held in the above case by the Hon ble Supreme Court as under: The Assessing Officer has no power to review; he has power to reassess but reassessment has to be based on fulfilment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention. What is important for our purpose is that the entire issue was scrutinized by the Assessing Officer during the original assessment proceedings. It is only upon consideration of the said aspect, he has made disallowance to the limited extent of ₹ 2,11,316/-. 15. In our opinion, even within a period of four years such assessment cannot be reopened. Any permission to the Assessing Officer to do so would amount to permitting change of opinion. If the Department was of the opinion that the disallowance was not fitting the legal position, other remedy was available. Surely, to correct the assessment order passed after a detailed examination by the Assessing Officer, the succeeding Assessing Officer cannot resort to the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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