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TMI Blog2018 (4) TMI 1521X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon’ble Supreme Court in the case of CIT vs. Kelvinator of India Ltd., (2010 (1) TMI 11 - SUPREME COURT OF INDIA ) has held that the concept of “change of opinion” must be treated as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, the Assessing Officer has power to reopen an assessment, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. - Decided in favour of assessee - ITA No.311/CTK/2016 And ITA No. 341/CTK/2016 - - - Dated:- 25-4-2018 - SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER For The Assessee : Shri Sachit Jolly, AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revised u/s.154/251 of the Act at ₹ 212,65,80,804/- while giving effect order of the CIT(A). Thereafter, the Assessing officer issued notice u/s.148(2) of the Act on 19.2.2014 for reopening of the assessment for the following reasons: Further verification of assessment records, it is revealed that as per the information available in the record that the assessee company has incurred and debited an expenditure of ₹ 20,057 lakhs towards import expenditure, ₹ 93.26 lakhs towards legal consultancy and commission on which no tax was deducted u/s.195(1) would not be eligible for deduction under the head profit and gains of business or profession u/s.40(a)(ia) of the I.T.Act, 1961. Besides the above on verification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guments by relying on the decision of Hon ble Supreme Court in the case of CIT vs. Kelvinator of India Ltd., 320 ITR 561 (SC). Indian Metals Ferro Alloys Ltd He also relied on the decision of this Bench of the Tribunal rendered in the case of the assessee itself in ITA Nos.47 48/CTK/2014 and ITA Nos.73 74/CTK/2014 for the assessment years 2007-08 and 2008-09 order dated 25.10.2017 and argued that on the very same set of facts, the Tribunal has cancelled the reassessment order passed u/s.147/143(3) of the Act. He urged that following the same, the assessment order for the year under appeal should also be cancelled. 7. On the other hand, ld D.R. relied on the order of the CIT(A). 8. We have heard the rival submissions, perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Assessing Office prior to completion of assessment u/s.143(3) on 31.12.2011. It shows that on the basis of very same materials, the Assessing Officer has now formed a different opinion. In our considered view, the above action of the Assessing Officer cannot be sustained. In this connection, it is noticed that the Hon ble Supreme Court in the case of CIT vs. Kelvinator of India Ltd., 320 ITR 561 (SC) has held that the concept of change of opinion must be treated as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, the Assessing Officer has power to reopen an assessment, provided there is tangible material to come to the conclusion that there is escapement of income from assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95 of the Act on the payments made in foreign currency on certain imports and other expenditure and consequential disallowance u/s.40(a)(i) were not considered and difference in closing stock of chrome ore, which were available before the Assessing Officer at the time of making original assessment will empower the Assessing Officer to reopen the assessment even in absence of fresh tangible material. In our considered view, it is contrary to the above stated decision of Hon ble Supreme Court in the case of Kelvinator of India Limited (supra). 11. Therefore, we set aside the reassessment orders dated 13.3.2015 for the assessment year under appeal and allow the appeal of the assessee. 12. In view of the fact that we have set aside the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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