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TMI Blog2016 (5) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... have no merits. - Decided in favour of assessee - ITA No. 6542/Del./2013 - - - Dated:- 6-4-2016 - SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Appellant : Ms. Ritu Sharma, Sr. DR For The Respondent : Sh. Rajeev Saxena, Sumangla Saxena and Bharti Chauhan, Advocates ORDER Per L.P. Sahu, Accountant Member: This appeal by the Revenue arises out of the order dated 19.09.2013 of ld. CIT(A)-VIII, New Delhi for the assessment year 2004-05 on the following grounds : 1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the action of AO in reopening assessment u/s. 147/148 is not correct ? 2. Whether on the facts and in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 18,86,231/-. 03. In view of the above, I have reasons to believe that the income of ₹ 1033.52 lacs and ₹ 39,53,226/- aggregating to ₹ 10,73,05,226/- chargeable to tax has escaped assessment within the meaning of section 147 /148 of the income Tax Act, 1961. In response to the notice u/s. 148, the assessee filed its reply stating that the return already filed be treated as the return filed in response to notice u/s. 148 of the Act. The assessee also filed written submissions after obtaining the reasons recorded. After considering the submissions of the assessee, the Assessing Officer did not take any adverse view on point No. 1 of the reasons recorded as above. On point No. 2 of the reasons recorded, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning and thus, cannot confer jurisdiction on the AO to reopen the assessment. It was also submitted that merely on the basis of change of opinion, reopening proceedings are not valid. The assessee also challenged the addition made by AO on merits. It was also submitted that the AO did not apply his mind before reopening of assessment inasmuch as the prior period expenses calculated by the audit team works out to ₹ 39,53,226/- whereas the actual figure of the expenses as per assessment record was ₹ 36,85,691/-. The assessee also relied on various case laws as mentioned in the impugned order. The ld. CIT(A) after considering the submissions of the assessee and the facts attending to the case, held the reassessment proceedings inva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the assessee has placed all material facts before the AO in the original assessment proceedings. The AO being satisfied did not raise any query further on this issue. Now in the reassessment proceedings after four years he cannot raise any such issue in absence of any material to show that assessee has not fully and truly disclosed all material facts. This is not only contrary to the proviso of section 147 but also amounted to change of opinion which is not permissible in law and also contrary to the intention of the legislature and as such the words reason to believe are absent to initiate the proceedings u/s 147. Hon'ble SC in the matter of CIT vs. Kelvinator India 320 ITR 561 have already held that reopening is not permissib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,53,226/- is hereby deleted. 3. The ld. DR relying on the order of the AO, submitted that the ld. CIT(A) was not justified in deleting the addition and in holding the proceedings as invalid. It was submitted that the income was under-assessed in the original assessment and therefore, initiation of proceedings were quite valid. On the other hand, the ld. AR of the assessee relied on the first appellate order. On the issue of validity of re-assessment proceedings, the ld. Counsel for the assessee has relied on various decisions on various aspects of the case. 4. We have considered the rival submissions and have perused the entire material available on record and we find no justification to interfere with the findings reached by the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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