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TMI Blog2007 (4) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 for the Assessment Year 1996-97 whereby the Tribunal has held that no new material has come on record nor any new information has been received by the Assessing Officer and it was only a case of fresh application of mind 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) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment Year 1997-98 called for information under Section 133(6) of the Act from M/s. Kirti Associates P. Ltd. requiring them to furnish a copy of account of the Assessee Company for the period 1st April 1995 to 31st March, 1996, 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 1 st 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering the submissions by the Assessee as well as the various decisions, reached at the conclusion that the action of the Assessing Officer in initiating proceedings under Section 147/148 of the Act cannot be sustained. On merits also the additions 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber of decisions of the Apex Court as well as of High Courts, that when the primary facts necessary for the assessment are fully and truly disclosed to the Assessing Officer at the time of original assessment proceedings, the Assessing Officer is not entitled 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 origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion that in the facts and circumstances of the case, the Commissioner of Income Tax (Appeal) was fully justified in deciding the issue on merits in favour of the assessee. We have reproduced the findings of Commissioner of Income Tax (Appeal) in para 6 (supra). We 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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