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TMI Blog2014 (11) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the reasons and grounds the Tribunal concluded that the reopening is purely on a change of opinion - so long as there are reasons and which constitute the belief for reopening the assessment whether they are established or proved is something which cannot be decided in the writ jurisdiction – in Assistant Commissioner of Income-Tax Versus Rajesh Jhaveri Stock Brokers P. Limited [2007 (5) TMI 197 - SUPREME Court] it has been held that if the AO has reason to believe that income and escaped assessment it confers jurisdiction to reopen the same - The ambit and scope of the powers being clear, in no case they enable the AO to reopen the assessment on mere change of opinion – thus, the order of the Tribunal is upheld – Decided against revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been amended from 1st April, 1989. Therefore, the Tribunal erred in holding that the reassessment has been erroneously reopened. Further, the Tribunal's conclusion that the reopening of the assessment is vitiated by change of opinion is totally perverse. The Assessing Officer has not considered the applicability of section 40(a) of the Income Tax Act, 1961. There was no opinion formed or conclusion reached by him on that count. If that is the position, then the Tribunal could not have concluded that the reopening is vitiated by a change of opinion. Mr. Chhotaray would rely upon the judgments of the Hon'ble Supreme Court in the case of Assistant Commissioner of Income Tax vs. Rajesh Jhaveri Stock Brokers Private Limited reported in 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are, then, further particulars and details ought to have been set out as to why section 195 of the Income Tax Act is applicable. That on such payments tax has to be deducted at source should have been indicated with sufficient particulars. The attempt to reopen is by relying upon an order passed by the Commissioner of Income Tax having jurisdiction over one Lucent Technologies Ltd. Without indicating as to how the Assessee stands on the same footing as Lucent Technologies Ltd. and whether the Department view therein would apply to the Assessee's case it was not open for the Assessing Officer to reopen the assessment. Therefore, the Tribunal has found that this is nothing but a change of opinion and which cannot be the basis for reopenin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to foreign parties for license to use software, rather the activity or component of trading of imported software in India has been referred. In such circumstances, the Tribunal concluded that the reasons which have been assigned to reopen the assessment are nothing but reflecting a change in the opinion. That cannot be the basis for reopening the same is the settled legal position and in that regard the Tribunal has not only referred to the judgment of the Hon'ble Supreme Court in the case of CIT vs. Kelvinator of India Ltd. reported in 320 ITR 561 but the other judgments. The recent judgments have also be noted and a finding of fact which has been recorded by the Tribunal is that there is no tangible material based on which the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the law must be allowed to take its course. Meaning thereby the Assessing Officer should be allowed to pass an order relying upon the contents of that notice or the reasons based on which it is issued. It is in that context that the Hon'ble Supreme Court in the case of the Assistant Commissioner of Income Tax vs. Rajesh Jhaveri (supra) outlines the ambit and scope of section 147 and concludes that if the Assessing Officer has reason to believe that income and escaped assessment it confers jurisdiction to reopen the same. The reasons therefor or their adequacy or sufficiency is not something which a writ court can probe or go into and in such details as is desired by the Assessee. We do not see how such conclusions go counter to the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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