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TMI Blog2014 (10) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... cision in Commissioner of Income Tax, Delhi Versus M/s. Kelvinator of India Limited [2010 (1) TMI 11 - SUPREME COURT OF INDIA] - the notice dated 15th December 2011, u/s 148, and consequent assessment order dated 22nd December 2011, passed u/s 147/143(3), is held as void as the reasons recorded are based on change of opinion and do not clothe the AO with jurisdiction to re open the assessment thus, the order of the CIT(A) is set aside Decided in favour of assessee. - ITA No.2036/Mum./2013, ITA no. 2181/Mum./2013 - - - Dated:- 22-8-2014 - SHRI D. KARUNAKARA RAO AND SHRI AMIT SHUKLA, JJ. For the Appellant : Shri A.K. Kardam For the Respondent : Shri Pankaj R. Toprani a/w Ms. Krupa Toprani ORDER Per: Amit Shukla: These cross appeals are directed against the impugned order dated 20th December 2012, passed by the learned Commissioner (Appeals) XII, Mumbai, for the quantum of assessment passed under section 143(3), of the Income Tax Act, 1961 (for short the Act ) for the assessment year 2007 08. 2. In assessee's appeal wherein the assessee has challenged the validity of re opening of the assessment under section 147, vide ground no.1. Since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for A.Y. 2007 08 has been filed vide acknowledgement dt. 31.10.2007 declaring total income under normal provisions at ₹ 2,80,37,62,316 and ₹ 3,55,48,54,200 u/s 115JB of the I.T. Act. Assessment u/s 143(3) has been completed on 05.05.2009 at total income under normal provisions at ₹ 3,11,72,96,159 and book profit at ₹ 367,26,75,587. Perusal of records shows that in the assessment order u/s 143(3) dt. 05.05.09 for the A.Y. 2007 08, excess allowance of deduction u/s 80IC at ₹ 4.99 crores has been made by omitting to exclude the following receipts / incomes which are not derived from the business of the undertaking as per requirement of deduction under section 80IC. As per Schedule 7 Rent from property Rs.3,82,878 Export Benefits Rs.84,48,875 Insurance and other claims Rs.45,51,894 Miscellaneous Income Rs.2,54,29,908 Provision no longer required Rs.8,00,304 Total: Rs.3,96,13,659 As per Schedule 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this regard has been dealt from Page 12 to 17 of the appellate order. 6. Before us, the learned Counsel for the assessee drew our attention to the computation of income and the claim of deduction under section 80IC, which was duly supported by an audit report under section 10CCA. He also drew our attention to the details of other income which was given in the Balance Sheet of Century Pulp Paper unit as given in Schedule VII. He submitted that not only this, the Assessing Officer has also raised specific queries with regard to the claim made under section 80IC and thereafter, has even disallowed part of the claim, which was also the subject matter of appeal before the learned Commissioner (Appeals). Once the Assessing Officer in the original assessment proceedings, has applied his mind on the material placed on record and then again subject matter of scruting by the learned Commissioner (Appeals), then without any fresh material coming into record re opening under section 147 cannot be made, as it amounts to change of opinion , which is not permissible in law. He submitted that even from the perusal of the reasons recorded , it can be seen that the Assessing Officer has men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Assessing Officer as mentioned in the forgoing paragraph. After considering the entire claim of the assessee, the Assessing Officer has reduced the claim of deduction under section 80IC, by allowing the claim in respect of profits attributable to paper and the deduction relating to profits attributable to sale of pulp was denied. Thereafter, the matter had travelled up to the first appellate authority, wherein the learned Commissioner (Appeals) had upheld the disallowance of claim of deduction under section 80IC. After having completed the assessment in the aforesaid manner, the assessment has been sought to be re opened for further disallowance of claim of deduction under section 80IC, on the ground that the claim of deduction was wrongly allowed on other income relating to the said unit. From the perusal of the reasons recorded , it is seen that the Assessing Officer is referring to the earlier assessment order passed under section 143(3) dated 5th May 2009. There is no whisper about any fresh material or information coming on record to show that any income chargeable to tax has escaped assessment. The entire reasons seems to be based on the premise that the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexus with the income escaping assessment. The Assessing Officer cannot re open the case even though he comes to a conclusion that earlier opinion expressed by the Assessing Officer was not correct. If in the earlier order, the Assessing Officer on a particular issue has formed any opinion, then the main provision of section 147, precludes the re opening of the assessment. The reason to believe cannot be for reviewing of earlier order as it will lead to arbitrary exercise of power by the Assessing Officer to re open the case under the grab that the earlier opinion expressed was not correct view. Thus, on the facts of the present case, we are of the opinion that the reasons recorded by the Assessing Officer is purely based on change of opinion de hors any tangible material coming into record. Thus, in view of the law laid down by the Hon'ble Supreme Court in Kelvinator of India Ltd. (supra), the notice dated 15th December 2011, under section 148, and consequent assessment order dated 22nd December 2011, passed under section 147 / 143(3), is held as void as the reasons recorded are based on change of opinion and do not clothe the Assessing Officer with jurisdiction to re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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