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TMI Blog2018 (3) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the material/subject matter available in the audit objection was already examined by AO during the regular assessment under section 143(3) of the Act, by taking an affidavit from the assessee to satisfy the requirement of obtaining Form No. 15-I. CIT(A) rightly held that since the AO has changed his opinion and there were no new material before him except an audit objection, therefore, reopening u/s 147/148 was erroneous. - Decided in favour of assessee - ITA No.601/Kol/2015 And CO No.27/Kol/2015 - - - Dated:- 17-1-2018 - SHRI S.S. VISWANETHRA RAVI, JM AND DR. A.L.SAINI, AM For The Appellant : Shri Saurabh Kumar, Addl. CIT (DR) For The Respondent : Shri K.K. Khemka, Advocate P.C. Nayak, A/R ORDER Per Dr. Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was reopened u/s 147/148 of the Act because of the audit objections. The reasons recorded in audit objection was that the assessee had debited in profit and loss account ₹ 2,67,09,247/- as truck hire, running and maintenance charges and showed ₹ 29,91,877/- as sundry creditor and did not deduct TDS while making payment to all the sub-contractors. The assessee neither obtained Form No.15I from the truck owners nor any declaration in Form 15J was furnished by the assessee. Based on the above reasons, the reassessment proceedings was initiated against the assessee and the AO disallowed under the head of truck hire, running and maintenance charges at ₹ 52,53,649/-. 4. Aggrieved by the order of the AO, the assessee filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneous. Without fresh material and that too after 4 years from end of assessment year, recourse to section 147 is not the correct approach. Therefore, ld. CIT(A) held that in the assessee s case under consideration, the AO had merely changed his opinion and changed of opinion does not give fresh material or tangible material. Therefore, ld. CIT(A) held that the entire material and facts were there at the time of original assessee u/s 143(3) and on the same material the reopening was done by the AO is nothing but change of opinion, therefore, reopening u/s 147/148 is bad in law and this way ld. CIT(A) cancelled the reassessment made by the assessing officer. 5. Not being satisfied with the order of the ld. CIT(A) the Revenue is in appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing officer, and he has to record reasons, why this tangible material/information makes him believe that income has escaped assessment. In the case, a conscious decision not to effect the disallowance of ₹ 49,97,704/- was taken by assessing officer at the stage of assessment u/s 143(3). The CIT(A) further observed that the AO after 4 years from the end of assessment year has changed his opinion, and when the opinion was changed, there were no new material before him except an audit objection. Moreover, the material/subject matter available in the audit objection was already examined by the assessing officer during the regular assessment under section 143(3) of the Act, by taking an affidavit from the assessee to satisfy the require ..... X X X X Extracts X X X X X X X X Extracts X X X X
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