9911796707
TMI Blog2007 (4) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Assessing Officer to the same sets of facts which tantamount to a change of opinion and therefore, it cannot be the basis for re-opening of a completed assessment and the Tribunal also deleted the additions on merits. 2. The brief facts of this case are that the Assessee Company is carrying on the business of manufacturing PU foams and its products. The Assessee filed its return of income on 30th November, 1996 declaring an income of Rs. 30,93,980/-. However, the assessment was completed under Section 143 (3) of the Act, on 31st March, 1999 on a total income of Rs. 44,99,053/- by Joint Commissioner of Income Tax, Special Range, New Delhi. 3. The Assessee preferred an appeal against the assessment order before Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to verify the payments made for the construction of factory building at Silvassa. 6. M/s kirti Associates vide their letter dated 29th February, 2000 submitted that the building was under construction during the Financial Year 1st April, 1995 to 31st March, 1996 and they have received payments amounting to Rs. 1,06,25,460/- during the Financial Year from the Assessee Company and the same have been duly accounted for in their Profit and Loss Account. 7. The Assessing Officer vide letter dated 16th March, 2000 asked the Assessee to explain whether the sum of Rs. 1,06,25,460/- has been accounted for in their books of account and why the excess expenditure should not be added under Section 69 C of the Act. The Assessing Officer observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made by the Assessing Officer was deleted. 9. Being dissatisfied with the order of Commissioner of Income Tax (Appeal), the Revenue filed appeal before the Tribunal and vide impugned order, the Tribunal dismissed the appeal of the Revenue. 10. It has been argued by learned counsel for the Revenue that during the assessment proceedings for the Assessment Year 1997-98, the Assessing Officer had come to know that M/s Kirti Associates who was entrusted with the construction of the factory building has received an amount of Rs. 71,81,358/- in cash and the total work in progress declared by M/s. Kirti Associates was Rs. 11,25,460/- which was not comparable with the amount declared by the Assessee and as per copy of account furnished by M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to commence proceedings under Section 147 of the Act on a change of opinion. 13. Further, the Assessing Officer has got no power to review his order nor he can do so it under Section 147 of the Act. The Assessing Officer ordering re-assessment cannot sit as a court of appeal over the Assessing Officer making the original assessment and it is not open to the Assessing Officer ordering re-assessment to substitute his own opinion for that of the Assessing Officer, who made the original assessment. 14. The Tribunal in its impugned order has held that :- "It is apparent from the record that during the course of original assessment all the relevant facts, statement of account of M/s. Kirti Associates was called for by the Joint Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully agree with his observation that the copy of account submitted by Kirti Associates cannot be relied upon because there is no authentic day to day accounting made by the said concern. The factory building was valued at Rs. 43,07,500/- by the approved valuer in May, 1996. It is also seen that when the factory was destroyed in fire on 12th April, 1998, an independent team of surveyors from New India Assurance Co. assessed the replacement cost as on April, 1998 at Rs. 60,25,390/-. In our view, the Commissioner of Income Tax (Appeal) has rightly held that this replacement cost as in April, 1998 would obviously be much more than the cost of construction in financial year 1996-97 due to the escalation in cost of construction over a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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