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TMI Blog2016 (10) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it would amount to reopening on account of change of opinion which is not permissible in the eyes of law. It has also been held by the various High Courts that once the AO has applied his mind on particular facts, the same facts cannot be used for reopening of the assessment. Therefore, I find no merit in reopening of the assessment. Accordingly hold that since the reopening of assessment is on account of change of opinion, it is bad in law and is not sustainable in the eyes of law. - Decided in favour of assessee. - ITA No.1390/Bang/2010 - - - Dated:- 26-8-2016 - SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER For The Appellant : Shri Ravi Shankar, Advocate For The Respondent : Mrs. Jahanzeb Akhter, CIT(DR) ORDER This app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .234-B and 234C of the Act, which under the facts and in the circumstances of the appellant's case deserves to be cancelled. 7. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs. 2. Besides assailing the order of CIT(Appeals) on merits, the assessee has challenged the validity of reopening of assessment on the ground that all information were available before the Assessing Officer while completing the original assessment, therefore reopening of assessment is simply on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the assessee. Again on 14.8.06 and 10.10.06, when the matter was listed for hearing before the AO, none appeared on behalf of the assessee. Accordingly assessment was completed vide order dated 7.11.2006 u/s. 143(3) r.w.s. 147 of the Act. The AO has also completed the assessment in search proceedings including an income of ₹ 10,12,000 admitted by the assessee during the course of survey towards investment in excess stock, but the same was deleted by the Tribunal in appeal, having observed that in block assessments only that income can be added which has accrued on account of seized material or documents. Thereafter, the AO has formed a view that during the course of survey conducted on 8.1.2000, the assessee has admitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investment in excess stock. The AO, however, made the addition of this alleged investment in excess stock while completing the assessment consequent to search on 10.10.2006 and the addition made therein was rightly deleted by the Tribunal as the alleged investment in excess stock was not found during the course of search. 7. Now the AO has recorded reasons for reopening the assessment on 16.2.2006 stating therein that despite having admitted the investment in excess stock during the course of survey, assessee has not declared the said sum of ₹ 10,12,000 in the return of income filed for AY 2001-02 and issued notice u/s. 148 of the Act. The ld. counsel for the assessee further contended that information with regard to the investment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to unexplained investment in excess stock of ₹ 10,12,000 was available with the AO and if the assessee failed to retract his earlier statement and also failed to explain the source of investment, the AO could have made an addition on the same while completing the assessment u/s. 143(3) of the Act, but he did not do so. Therefore it is a possibility that AO might have been convinced with the explanation on addition made on account of unexplained investment in excess stock to the tune of ₹ 10,12,000, because no addition was made in this regard while completing the assessment u/s. 143(3) of the Act. 10. Later on, when he was completing the assessment pursuant to the search, he included this unexplained investment in the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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