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TMI Blog2010 (3) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act remained unchanged at Nil, the total income under the provisions of section 115JB was computed at ₹ 38,39,51,694/-. The said revised return was processed u/s 143(1) on 19-04-2004 without adjustments. Later the assessment was taken up for scrutiny and the AO passed an order u/s 143(3) on 22nd March, 2004 determining the total income at ₹ 2,37,81,155/- under the normal provisions of the Act and at ₹ 43,47,37,384/- under the provisions of section 115JB of the Act. Thereafter the AO for reasons recorded, reopened the assessment u/s 147 by issuing a notice u/s 148 on 30-032006. This notice was served on the assessee on 31-03-2006. In response to the said notice, the assessee filed a letter dated 18-04-2006 requesting that the revised return filed by it on 28-03-2003 be treated as a return filed in response to notice u/s 148. Thereafter the AO completed the assessment u/s 143(3) read with section 147 of the I.T. Act vide order dated 29-12-2006. In this re-opened assessment order, the AO recomputed the book profit u/s 115JB at ₹ 93,69,42,890/-. The assessee carried the matter in appeal wherein it had challenged both the validity of reopening of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utation of book profit should be started by taking the difference of the profit transferred to the Balance Sheet in the current year and the balance of the profit and loss account brought forward from previous year and not with the profit before tax as contended by the Assessing Officer. 3. On the facts and circumstances of the case and in law, the CIT(A) erred in directing the Assessing Officer to allow the write back of excess provision as a deduction in the computation of Book Profit us 115JB. 4. On the facts and circumstances of the case and in law, the CIT(A) erred in directing the Assessing Officer to allow the withdrawal from Share Premium Account as a deduction in computation of Book Profit u/s 115JB. 5. On the facts and circumstances of the case and in law, the IT(A) erred in holding that the provisions of Sec. 234D of the Act cannot be applied in the assessee's case because the refund granted vide intimation u/s 143(1) was prior to the insertion of Sec. 234D w.e.f. 01.06.2003. 6. On the facts and circumstances of the case and in law, the CIT(A) erred in holding that since the assessment has already been made u/s 143(3) of the Act the provisions of Sec. 234D of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Investment P. Ltd. vs. DCIT 308 ITR 190 (Bom.). 6. On ground No. 3, the learned counsel for the assessee submitted that while the AO added back a figure of ₹ 30 crores, the CIT(Appeals) committed an error and mentioned the same as ₹ 3,37,14,000/-. He wanted to figure rectified. 7. On ground No. 4 the learned counsel submits that insertion of para 10 in the CIT(Appeals)' order appears to be erroneous. 8. The learned DR. Mr. Daya Shanker, on the other hand, contradicted the submissions of the learned counsel for the assessee and argued that the AO need not by legal evidence come to an ultimate conclusion that income has escaped assessment, while recording reasons for reopening. He submitted that a prima facie opinion would be sufficient in the matter. He pointed out that the assessments were reopened within four years from the end of the assessment year and the situation is covered by the proviso to section 147 of the Act. He relied on para 3.6 of the CIT(Appeals)' order. On the other issues, he submitted that the assessee should have filed rectification petition before the first appellate authority. 9. Mr. Daya Shanker, the learned CIT-DR started his arguments on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned CIT(Appeals). 10.3 On ground No.4 he submitted that the issue has been decided in favour of the assessee by the decision of the Tribunal in its own case for the assessment year 1990-91. 10.4 On ground No. 5, 6 and 7 he submitted that the issue is covered in his favour. 10.5 On ground No. 8 i.e. additional of notional expenses for earning of dividend income, he submitted that while passing the original assessment order, the AO made a similar adjustment and on appeal the first appellate authority has deleted the same and the Revenue has not come in appeal. He pleads that the issue has attained finality. 11. Rival contentions heard. On a careful consideration of the facts and circumstances of the case and a perusal of the papers on record and the orders of the authorities below as well as the case laws cited, we hold as follows. 12. The first appellate authority at para 3.1 has brought out in brief the reasons for reopening. The same is extracted below for ready reference : "3.1 In the assessment year under consideration, regular assessment was completed vide order u/s 143(3) dated 22-03-2004. In the said order various additions/disallowances were made in both computation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02) 174 CTR (Del)(FB) 617 : (2002) 256 ITR 1 (Del)(FB) concurred with." At para 10 of the said decision, the Hon'ble High Court held as under : " It is further to be seen that the legislature has not conferred power on the AO to review its own order. Therefore, the power under s. 147 cannot be used to review the order. In the present case, though the AO has used the phrase "reason to believe", admittedly between the date of the order of assessment sought to be reopened and the date of formation of opinion by the AO, nothing new has happened, therefore, no new material has come on record, no new information has been received; it is merely a fresh application of mind by the same AO to the same set of facts and the reason that has been given is that the some material which was available on record while assessment order was made was inadvertently excluded from consideration. This will, in our opinion, amount to opening of the assessment merely because there is change of opinion. The Full Bench of the Delhi High court in its judgment in the case of Kelvinator (supra) referred to above, has taken a clear view that reopening of assessment under s. 147 merely because there is a change o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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