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TMI Blog2017 (5) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... s of fact and law therefrom and the Assessee cannot further be called upon to do so for him." Here the Assessee had discharged its burden of disclosing fully and truly all the material facts before the AO during the original assessments. There was no basis for the successor AO to conclude that "no opinion with regard to taxation" of the payments received for the services rendered had been formed by the AO - Decided in favour of assessee. - ITA 1058/2011, ITA 1061/2011, & ITA 1063/2011 - - - Dated:- 18-5-2017 - S. MURALIDHAR CHANDER SHEKHAR JJ. Appellant Through: Mr. Rahul Kaushik, Senior Standing Counsel Respondent Through: Mr. M.S. Syali, Senior Advocate with Mr. Satyen Sethi, Mr. Mayank Negi Mr. Arth Taran Panda, Advocates O R D E R Dr. S. Muralidhar, J.: 1. These are three appeals by the Revenue under Section 260A of the Income Tax Act, 1961 ( Act ) against the common order dated 5th October, 2010 passed by the Income Tax Appellate Tribunal ( ITAT ) in ITA Nos. 1410, 1411 and 1413/Del/2007 relating to Assessment Years ( AYs ) 1998-1999, 1999-2000 and 2001-2002. 2. It must be mentioned at the outset that at the time of admission of these appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es refer to the nature of the transactions and the payments received in relation thereto. 7. For the Financial Year 2004-2005 , the Assessee filed applications dated 25th June, 2004 and 27th May, 2004 under Section 195(3) of the Act for issuance of nil deduction of Tax Deducted at Source ( TDS ). The Assistant Director of Income-Tax ( ADIT ) Circle-II (1), International Transactions, by an order dated 20th July, 2004 declined the application. He, inter alia, proposed to initiate reassessment/revision proceedings under Sections 147/263 in respect of the earlier orders to bring the correct income to tax in accordance with law. The plea taken in this order was that payments received by the Assesse, pursuant to the Operations and Maintenance (O M) Agreements should be treated as fees for technical services ( FTS ) within the meaning of Explanation 2 to Section 9(1)(vii) of the Act and Article 13(4) (c) of the DTAA between India and U.K. 8. Aggrieved by the above order, the Petitioner applied to the Director of Income Tax ( DIT ) under Section 264 of the Act. By an order dated 20th December, 2004, the DIT set aside the order of the ADIT, holding that the Assesse here is neither m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT vs. Eicher Ltd. (2007) 294 ITR 310(Del) where it was held that if the entire material had been placed by the Assessee before the AO at the time when the original assessment was made and the AO had applied his mind to material and accepted the view of the Assessee, then the assessment cannot be reopened merely on the basis of change of opinion. 13. The ITAT examined the assessment orders, queries raised by the AO and the other material on record and concluded that the Assessee had duly disclosed the very nature of its activities. As regards the observation of the AO that the Assessee should have filed the accounts of each project individually, instead of filing the consolidated statement of accounts, the ITAT noted that the Assesse had been filing audited accounts. It opined that it was the duty of the AO to have examined this aspect in the scrutiny assessment. Further, the AO had called for information in that regard and the Assessee had submitted an explanation on its activities. The ITAT, therefore, held that it was a different perception of the new incumbent on the same details. Thus, the assessment has been reopened by the AO only on the basis of the change of opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority has not applied its mind to the issue before it nor formed any opinion. The principle that a mere change of opinion cannot be a basis for reopening computed assessments would be applicable only to situations where the assessing officer has applied his mind and taken a conscious decision on a particular matter in issue. It will have no application where the order of assessment does not address itself to the aspect which is the basis for reopening of the assessment, as is the position in the present case. It is in that view inconsequential whether or not the material necessary for taking a decision was available to the assessing officer either generally or in the form of a reply to the questionnaire served upon the assessed. What is important is whether the assessing officer had based on the material available to him taken a view. If he had not done so, the proposed reopening cannot be assailed on the ground that the same is based only on a change of opinion. 16. The fact of the matter is that later Benches of this Court, including two Full Benches in CIT v. Kelvinator of India Ltd.(supra) and CIT v. Usha International Ltd., (2012) 348 ITR 485 have disagreed with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n both Praful Chunilal Patel as well as Garden Silk Mills. In Kelvinator the Full Bench had also analysed the earlier Division Bench decisions, namely, Jindal Photo Films Ltd. v. Deputy Commissioner of Income-Tax presided over by R.C. Lahoti J. (as learned Chief Justice of India then was) and Bawa Abhai Singh v. Deputy Commissioner of Income-Tax [2002] 253 ITR 83 comprising Arijit Pasayat and D.K. Jain JJ. (as their Lordships then were). It is quite possible that had the Court in Consolidated Photo been made aware of the consistent opinion of this Court in Jindal Photo and Bawa Abhai Singh, their conclusion may have been totally different, notwithstanding alternative view of the Gujarat High Court. 18. There is no manner of doubt that the decision of the DB of this Court in Consolidated Photo and Finvest Ltd. v. Assistant Commissioner of Income-Tax (supra) is no longer good law. The main plank of the Revenue's case before this Court, therefore, fails. Nevertheless, the Court proceeds to examine the question of validity of the reopening of the assessments for the AYs in question. 19. The fact of the matter is that during the course of the original assessments under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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