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TMI Blog2019 (3) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... 147 on the basis of same facts and materials (and no more) disclosed at the time of original assessment made under section 143(3) by mere change of opinion. In view of dictum in CIT vs. Kelvinator of India Ltd as the opening of assessment is based upon mere change of opinion, hence the assessment order is liable to be quashed on this ground alone, therefore we do not have any hesitation to quash the assessment order and consequently the impugned order is set aside. - Decided in favour of assessee. - ITA No.705(Asr)/2017 - - - Dated:- 22-2-2019 - SH. N. S. SAINI, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER For The Appellant : Sh. K. R. Jain (Ld. Adv. ) For The Respondent : Smt. Ratinder Kaur (Ld. DR) ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of ₹ 66,11,250/- was made after allowing the deduction of ₹ 24,37,340/- u/s 54 of the Act being long term capital gain by the Assessing Officer, which was challenged before the Ld. CIT(A) who vide impugned order affirmed the addition. Now the assessee being aggrieved before us. 4. At the outset, the assessee drawn our attention to the reasons recorded by the Assessing Officer which for the sake of convenience and brevity are reproduced herein below. The assessee has filed his return of income of ₹ 1,31,751/- for the assessment year 2009-10 vide Ack No.4009677 dated 30.07.2009. The same was assessed u/s 143(3) of the I.T. Act, 1961 vide order dated 30.12.2011 at an income of ₹ 10,79,750/-. During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered view and have reason to believe that there is failure on the part of the assessee to disclose fully and truly the cost price of the alleged agriculture land and that the taxable income to the extent of ₹ 66,11,805/- has escaped assessment for the Assessment Year 2009-10 within the meaning of section 147 of the Income Tax Act, 1961 and also other income chargeable to tax in respect of which assessee is assessable, which has escaped assessment and which comes to notice subsequently in the course of the proceedings under this section for the assessment year 2009-10. So issue notice u/s 148 of the Income Tax Act, 1961 for A.Y 2009-10. 5. From the reasons recorded, it reflects that the Assessing Officer without disclosin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 to 153 referred to as the relevant assessment year). Provided that where an assessment under subsection (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year. Explanation 1. - Production before the assessing officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieve that the income for any assessment order has escaped assessment and has duly recorded these reasons, however as it well settled that the reasons to believe must be bona fide and must be based upon relevant material on which a reasonable person could have form the requisite belief. 5.3 In the instant case, the assessing officer opened the proceedings on the basis of same facts which have already been considered by the assessing officer while passing the original assessment order u/s 143(3) of the Act. Therefore question arose as to whether the Assessing officer can reassess the facts and materials which were the subject matter of the original assessment. The Hon'ble Supreme Court C.I.T. vs. Kelvinator (I) Ltd. (320 ITR 651) whil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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