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TMI Blog2018 (3) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... o years which are before us. On receipt of information by way of the appellate order, the Assessing Officer realised the escapement of assessment in the assessment years 1987-88 and 1988-89. The appellate order has already been held to be coming within the ambit of information as contemplated under Section 147. Hence there could be no vitiating factor found in the re-assessment having been carried out. - Decided in favour of revenue - ITA Nos. 12 of 2009 And 30 of 2009 - - - Dated:- 20-2-2018 - Mr. K. Vinod Chandran And Mr. Ashok Menon, JJ. For The Appellant : Sri. Anil D. Nair, Smt.Nivedita A.Kamath And Sri. J. R. Prem navaz For The Respondent : Sri. Jose Joseph, SC, For Income Tax JUDGMENT K. Vinod Chandran, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer constituted information and that re-assessment is permissible under Section 147. The assessee appealed to the Tribunal which confirmed the order of re-assessment. The assessee is before this Court with the aforestated questions of law. 3. For both the assessment years 1987-88 and 1988-89, the original assessment was completed on 02.03.1990. The deduction claimed under Section 80 HHC was allowed despite there being no certificate produced from the export house/trading house. The said allowance was contrary to the CBDT's Circular No. 466 dated 14.08.1986. After completion of assessment, the Assessing Officer was served with an appellate order of the Commissioner of Income Tax (Appeals) for the assessment years 1985-86 and 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 116 ITR 158 (Commissioner of Income-tax, Kerala v. Kerala State Industrial Development Corporation Limited). 6. The questions to be answered are whether the Assessing Officer had initiated proceedings under Section 147 merely on a change of opinion and whether the appellate order could be taken as an information as contemplated under Section 147. Kelvinator of India Ltd. (Supra) as decided by the Full Bench of Delhi High Court and affirmed by the Hon'ble Supreme Court set aside the re-assessment made under Section 147 on the ground of a mere change of opinion. Therein, on re-assessment, the expenses incurred on the maintenance of guest houses were disallowed and added to the total income. There were other grounds alleged for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate order, proceedings were taken under Section 10A of the Act for assessment of excess profits tax liability by a re-opening carried out under Section 15 of the Act as it existed then. Section 15 of the Act, as it existed then provided, if in consequence of definite information, which has come into possessions of the Excess Profits Tax Officer, he discovers that profits on any chargeable accounting period have escaped assessment, etc. he may at any time serve a notice containing all or any of the requirements which may be included in a notice under Section 13 and may proceed to assess or reassess the amount of such profits liable to excess profit tax. On the specific defense raised as to no definite information having come into posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority confirmed the dis-allowance made by the ITO. On the basis of the appellate order of the subsequent year, the assessment by which deduction was allowed, was reopened, which was upheld by the Division Bench of this Court. 9. In the context of the declaration made by the Hon'ble Supreme Court and this Court it cannot be said that the re-assessment was merely based on a change of opinion. The appellate authority had for the other years affirmed the findings of the Assessing Officer that a deduction under Section 80 HHC could be claimed successfully only if there were produced certificate of the export house. Admittedly, no certificates were produced by the assessee and inadvertently the Assessing Officer had allowed the deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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