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TMI Blog2018 (6) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... peals)-8, Mumbai for A.Y. 2008-09. ITA No. 1586/Mum/2016 A.Y. 2008-09 2. The basic grievance of the Department in this appeal is against the decision of the learned CIT(A) in holding the assessment order passed under Section 143(3) r.w.s. 147 of the Income Tax Act (hereinafter the Act ) as bad in law and void. 3. The brief facts of the case are, the assessee company, as stated by the Assessing Officer (AO), is engaged in the business of infrastructure development. In pursuance to such activity it has developed a Special Economic Zone (SEZ) in Nagpur district. For the assessment year under dispute assessee filed its return of income on 24.09.2008 declaring Nil income after claiming deduction under Section 80IAB of the Act. The assessment in the case of assessee was completed under Section 143(3) of the Act on 30.11.2010 determining the total income at ₹ 8,86,16,552/- after reducing the deduction claimed under Section 80IAB of the Act. Subsequently, the AO, having found that assessee s claim of deduction under Section 80IAB in respect of income earned from house property has been allowed in the original assessment, was of the view that the said income having not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that once the assessee s claim of deduction under Section 80IAB was examined and enquired into during the original assessment proceedings and the AO has recomputed such deduction while completing the original assessment, reopening of assessment on very same issue would amount reopening of assessment on mere change of opinion. Thus, relying upon certain judicial precedents learned CIT(A) ultimately held that reopening of assessment under Section 147 of the Act was invalid and accordingly declared the impugned assessment order to be bad in law and void. Aggrieved, Revenue is in appeal before us. 5. The learned Departmental Representative (D.R.), though, accepted the fact that during the original assessment proceedings the AO has enquired into assessee s claim of deduction under Section 80IAB, however,he submitted that AO has not specifically examined whether the income derived from house property is eligible for deduction under Section 80IAB of the Act. That being the case, in the original assessment order AO did not form any opinion with regard to allowability of deduction under Section 80IAB of the Act in respect of house property income. He submitted, the issue which was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The learned A.R. submitted that for reopening the assessment under Section 147 of the Act the AO must have in his possession fresh tangible material. He submitted that without any fresh tangible material coming to possession of the AO he cannot reopen the assessment under Section 147 of the Act in respect of an assessment already completed under Section 143(3) of the Act. He submitted that since, assessee s claim of deduction under Section 80IAB was enquired into and examined by the AO in the course of original assessment proceedings, the reopening of assessment on the very same issue without any fresh tangible material amounts to change of opinion, hence it is not permissible under the provisions of the Act. He submitted that if there is any mistake or error in the original assessment order the remedy does not lie under Section 147 of the Act which can be utilised under specific conditions and instances, and there are other provisions under the Act to rectify or make good an error made by the AO in the original assessment order. Thus, it was submitted by the learned A.R. that reopening of assessment having been made on a mere change of opinion is invalid. In support of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot referred to any fresh tangible material coming to his possession revealing escapement of income. From the reasons recorded it is clear that he was of the view that income `7,96,173/- being in the nature of house property income, cannot be treated to be derived from business of development of infrastructure, hence not eligible for deduction under Section 80IAB of the Act. Thus, it is crystal clear that the AO has no fresh tangible material in his possession while recording his reasons for reopening of assessment. Rather, it is evident that on re-appreciation and re-examination of material available on record during the original assessment proceedings and examined by the AO during the original assessment proceedings, the AO has formed his belief that income has escaped assessment. When from the original assessment order it is evident that the AO has enquired into and examined assessee s claim of deduction under Section 80IAB of the Act, the Department s contention that the AO has overlooked the particular aspect of allowability of deduction under Section 80IAB of the Act in respect of house property income is farfetched and unacceptable. It is difficult to accept that in the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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