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TMI Blog2015 (9) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar and S.S. Godara, JJ. For The Appellant : S.N. Soparkar with Urvashi Shodhan For The Respondent : Sonia Kumar Per Pramod Kumar AM: 1. By way of this appeal, the assessee appellant has challenged the order dated 20th December, 2011 passed by the ld. CIT(A) in the matter of assessment under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 ( the Act hereinafter) for the Assessment Year 2006-07. 2. One of the grounds raised before us, i.e. second ground of appeal, is directed against learned CIT(A) s upholding the initiation of reassessment proceedings. We will take up this issue first. 3. So far as this grievance of the assessee is concerned, relevant material facts are like this. In this case, assessment under section 143(3) of the Act was completed on 19.12.2008. Subsequently, however, the Assessing Officer reopened the assessment by recording following reasons on 04.03.2010 :- In this case the assessment u/s 143(3) of the I. T. Act-1961 was passed on 19.12.2008. On verification of the case records, it is seen that the assessee has already claimed 30% Standard Deduction out of the rental income shown during the four years on ₹ 32,63,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely on the basis of the change of opinion by the subsequent Assessing Officer. Such reopening is possible only on tangible materials in the event of the Officer finding reasons to believe that there is escapement of income from assessment. In my considered opinion, as I have understood from the judgements cited supra, more particularly, the recent judgement of the Hon ble Supreme Court cited supra, there is no legal necessity that the materials referred to in section 147 of the Act should be fresh materials collected subsequent to the original assessment orders. Even from out of materials which are already available on record, if the subsequent officer finds reason to believe that there has been escapement of assessment, surely he can issue notice under section 148 of the Act. Such course, will not, in my considered opinion, amount to reviewing the earlier assessment. 4.3.2 Thus as per the opinion of this court the tangible material for opening a completed assessment can come from the material already on record if the reopening is within four year of the end of the assessment year. This is particularly true if the assessing Officer has not made any opinion or has not cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of requisite belief to initiate the proceeding within four years of the end of the relevant assessment year, even where full disclosures were made and yet a income chargeable to tax had escaped from being included in the final assessment order in which taxable income was worked out. In such cases the Assessing Officer has in fact a duty to exercise his jurisdiction. The Assessing Officer has not to conclusively come to any finding on the facts which prompted his reason to believe, at the stage of the issuance of notice under section 148 pursuant to which the assessee is to be heard; and the order if adverse, can be questioned under the provisions of the Act. The cases of underassessment or excessive relief which are deemed case of escapement of income leave no scope for an argument that they are not cases of income having escaped assessment. If the Assessing Officer prima facie finds or discovers that the case falls in any of the clauses of Explanation 2, then those cases will be deemed cases of income that has escaped assessment and without anything more beyond such finding or discovery, he can initiate the proceedings under section 147 of the Act. On a proper interpretati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the case of Dalmia (P) Ltd. V/s. CIT Delhi, Taxmann. Com 106 (Delhi) and decision of Hon ble Kerala High Court in CIT Cochin V/s. National Tyres Rubber Co. of India Ltd. Taxmann. Com 3 (Ker). Ian the present case, the assessment has been reopened by issuing the notice u/s 148 within 4 years from the end of the assessment year. Hence on the basis of discussions made above, it is held that the assessment has been rightly reopened by the A.O. Accordingly, this ground of appeal is dismissed. 5. The assessee is not satisfied with the order of the ld. CIT(A) and is in further appeal before us. 6. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 7. We find that, Hon ble jurisdictional High Court in the case of Praful Chunnilal Patel vs. ACIT (236 ITR 832) as extracted above by the ld. CIT(A), had observed that when at the first assessment all the relevant aspects are considered and there is proper application of mind for ascertainment of the amount of taxable income and of the tax payable thereon, then in the absence of any error or mistake being discovered or fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 147 to 151 as substituted / amended with effect from 01.04.1989. 10. The main argument of the assessee before the Tribunal was that the income sought to be brought to tax by invoking the provisions of Section 147 of the Act is not such as can be said to have escaped assessment within the meaning of that Section. It is well settled that the provisions of Section 147 of the Act are not intended to be employed in a case of mere change of opinion on a given set of facts in context of a specific provision of the Act. 11. It appears from the record that the formation of belief by the Assessing Officer that certain income has escaped assessment for the year under appeal has been borne only because of the primary facts furnished by the assessee for the purpose of assessment of its income and other material information available on record. The details of payments made by the assessee to the persons specified in Section 40-A, Audit report u/s.44-AB and the controversy in relation thereto were well within the knowledge of the Assessing Officer who had passed the original order u/s.143(3) of the Act. The information regarding the assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same or some other item in such return; (ii) in respect of which the information required to be furnished under this Act to substantiate such entry has not been so furnished; or (iii) in respect of a deduction, where such deduction exceeds specified statutory limit which may have been expressed as monetary amount or percentage or ratio or fraction; (b) the acknowledgement of the return shall be deemed to be the intimation in a case where no sum is payable by, or refundable to, the assessee under clause (c), and where no adjustment has been made under clause (a). 143(3) : On the day specified in the notice,- (i) issued under clause (I) of subsection (2), or as soon afterwards as may be, after hearing such evidence and after taking into account such particulars as the assessee may produce, the Assessing Officer shall, by an order in writing, allow or reject the claim or claims specified in such notice and make an assessment determining the total income or loss accordingly, and determine the sum payable by the assessee on the basis of such assessment; (ii) issued under clause(ii) of subsection (2), or as soon afterwards as may be, after hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the earlier Assessing Officer passed u/s.143(3) with respect to the issues sought to be covered u/s.147 of the Act. Hence, the CIT(A) was completely justified in anulling the order of the successor Assessing Officer. Accordingly, we answer the question raised in this appeal in favour of the assessee and against the Revenue. 8. In the present case, this is precisely what successor Assessing Officer has done. 9. In the course of original assessment proceedings, not only all the necessary details were on record, a specific question with respect to unrealized rent was raised during the assessment proceedings, this fact was duly recorded in the proceedings sheet before the Assessing Officer. We have perused the assessment records and we are satisfied about this fact. In this view of the matter, as learned Counsel for the assessee, rightly submits that the reopening of the assessment is nothing but review of the decision of the predecessor Assessing Officer on the same set of facts and without any fresh evidence or material coming to the record. This, as is the settled legal position, is not permissible under the scheme of the Act. 10. For the reasons set out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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