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TMI Blog2015 (2) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in holding that the reopening of assessment as invalid and bad in law when the same was based on the Revenue audit objection ? (b) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the reopening of assessment as invalid and bad in law by observing that the reopening in the present case is change of opinion when in fact no opinion was formed at any stage of assessment in respect of the admissibility of the claim of the assessee under section 80-IA in view of the fact that there is loss from the windmill project ? (c) Whether, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also not mentioned any separate books of account for this suit. On allocation of proportionate expenses this will be loss from the windmill project no deduction under section 80-IA is admissible to the 'a' as claimed. In view of the decision of the Bombay High Court in the case of Indian Rayon Corporation Ltd. v. CIT [2003] 261 ITR 98 (Bom), the same is, therefore, required to be withdrawn as wrongly allowed." 4. The respondent-assessee contested the reopening of the assessment. However, the Assessing Officer did not accept the same and by an order dated December 30, 2005, reduced the respondent's claim for deduction under section 80-IA of the Act and, consequently, re-determined the total income at Rs. 91.54 lakhs. In appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estions (a) and (c) are framed on the above basis. However, as the impugned order has not granted relief to the respondent-assessee on the basis that the reassessment was done on the basis of the audit objection, we see no reason to deal with the above submission. 6. It is well settled that the power to reopen an assessment is not a power of review and a mere change of opinion would not justify the reopening of an assessment. This would apply even when the assessment sought to be reopened is within the four years from the end of the assessment year. We find that the Revenue in its appeal in ground 6.1 states as under : "It is true that the issue of the claim of deduction under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings. The Tribunal has reached a finding of fact that the question with regard to the claim for deduction under section 80-IA of the Act was raised by the Assessing Officer and responded to by the respondent-assessee. This position is also not disputed by the Revenue. Merely because the issue is not discussed in the assessment order would not lead to a conclusion that no opinion was formed as to the subject of the query as held by this court in the matter of Idea Cellular Ltd. v. CIT reported in [2008] 301 ITR 407 (Bom). 8. So far as questions (a) and (c) are concerned, they do not arise out of the impugned order of the Tribunal. Therefore, we see no reason to admit questions (a) and (c). 9. So far as question (b) is concerned, the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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