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TMI Blog2020 (9) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A)-VI and the Tribunal have thoroughly scrutinised the entire facts and passed the order. The original assessment order was passed by the AO after taking into consideration of all the material facts. During the course of the re-assessment proceeding also, the AO has not found any tangible material by which income has escaped from the assessment. Without any application of mind, the Assessing Officer re-opened the assessment under the pretext that income has escaped assessment and passed the reassessment order under Section 147, which is a patent error committed by the Assessing Officer. Under these circumstances, we do not find any merit in all these three appeals filed by the Revenue and the same are liable to be dismissed on the above said point also. Non-payment of interest - relevant assessment year - HELD THAT:- Assessee had paid the interest within the relevant assessment year and all these facts have been disclosed by the Assessee to the Assessing Officer. After taking into consideration all these aspects, the Assessing Officer had passed the original assessment order. Therefore, we do not find any merit in the submissions of the learned counsel on the basis that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of the park developed, maintained and operated during the relevant previous year was Tidel Park . Assessee has obtained approval for setting up industrial park from the Ministry of Industry, Government of India. CBDT had also notified it as an industrial park under section 80IA(iii) of the Act. 4.2. For the relevant Assessment Year, the assessee filed its return declaring an income of ₹ 76,67,750/- and claimed deduction of ₹ 6,73,15,795/- under section 80-IA (4)(iii) of the Income Tax Act. Thereafter the assessment was completed on 10.03.2006 under section 143(3) of the Act. On 26.03.2008, assessee was served with a notice proposing to reopen the assessment. The assessee, in its reply filed on 17.04.2008, requested the Assessing Officer to treat the return originally filed as the return filed in pursuance of such notice and also requested the Assessing Officer to give reasons while resorting for re-assessment. The department furnished the reasons inter alia mentioned that the assessee had not filed the audit report in Form No.10CCB along with return, which was required for availing the deduction under section 80 IA of the Act. Thereafter, the re-assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed the appeal of the assessee on the ground that there was no failure on the part of the assessee to disclose fully and truly the material facts required for the assessment and thus held that the reassessment proceedings was invalid. 4.6. Aggrieved by the order of the CIT(A), the Revenue had filed an appeal before the ITAT which had rejected the appeal on the grounds that there was no tangible material with the Assessing Officer for taking a different view and that resorting to reopening of assessment was based on change of opinion which was not possible and thus, the very basis for assumption of jurisdiction for reopening of assessment was absent and upheld the finding of CIT(A) and dismissed the appela filed by the Revenue. 5. The brief facts relevant to the case of TCA.Nos.973 974 of 2013 are as follows:- 5.1. The assessee company claimed deduction under Section 80-IA(4)(iii) of the Act for the relevant Assessment Year. This was allowed in the original assessment under Section 143(3) of the Act, completed on 19.12.2007. The Assessing Officer issued notice on 17.03.2010 under section 148 proposing re-assessment. The Assessee's reasons for objecting to the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in invalidating the reopening of the assessment? 2.Whether on the facts and in the circumstances of the case, the assessee is eligibile for deduction under Section 80IA on the lease rental income from Industrial Park to be assessed under the head Profits and gains of Business or Profession? 7. The learned counsel appearing for the appellant submitted that the deduction under Section 80IA could be available only for the profits derived from developing, operating and maintaining facilities of the nature mentioned therein and could not be applied for rentals received from property. Therefore, he contended that in the present case, the lease rentals received by the Assessee is not eligible for deduction under Section 80IA and however, all these facts have not been considered by the Commissioner of Income Tax (Appeals)-VI, Chennai as well as the Tribunal. 8. The learned counsel for the revenue further contended that the reopening of assessment under Section 147 read with Section 148 of the Income Tax Act, 1961 was resorted not only for the purpose of withdrawal under Section 80IA, but f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other Judgment, which was rendered by a co-ordinate bench of this Court in the case of CIT vs. Chennai Properties and Investments Ltd. He contended that the income of lease rental laid on and from the house properties could be considered only as income from the business and not as income from the house properties. He further submitted that it is well a settled principle that the lease rental income derived from the Software Park could be considered only as income from the business and not income from the house properties as contended by the department. 12. The learned counsel for the respondent/assessee contended that the assessment has been completed on 31.03.2008, for the assessment year 2003-04, whereas the notice for re-assessment proceeding under Sections 147 and 148 of the Act has been issued by the department on 17.03.2010. Therefore, the notice issued under Section 148 of the Act was beyond the four year period of limitation as prescribed therein. That apart, no other new material was found by the department to show that the income has escaped assessment, to initiate the proceedings under Section 148. Therefore, he submitted that the appeal is also barred by limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut found none. 17. Further, both the CIT(A)-VI and the Tribunal have thoroughly scrutinised the entire facts and passed the order. The original assessment order was passed by the Assessing Officer after taking into consideration of all the material facts. During the course of the re-assessment proceeding also, the Assessing Officer has not found any tangible material by which income has escaped from the assessment. Therefore, we are of the opinion that without any application of mind, the Assessing Officer re-opened the assessment under the pretext that income has escaped assessment and passed the reassessment order under Section 147, which is a patent error committed by the Assessing Officer. Under these circumstances, we do not find any merit in all these three appeals filed by the Revenue and the same are liable to be dismissed on the above said point also. 18. The present issue is squarely covered by the Judgment of this Court passed in the case of CIT vs. M/s.Elnet Technologies Ltd., and CIT vs. Chennai Properties and Investments Ltd., in which the judgment in the case of The Commissioner of Income Tax, Chennai Vs. M/s.Tidel Park Ltd., passed in TCA.No.901 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not have come to the conclusion and re-opened the assessment under Sections 147 and 148 of the Act under the pretext that the Assessing Officer has not provided any opinion. In fact, the Assessing Officers cannot make any assessment without forming any opinion and pass the assessment order. Therefore, the question of the Assessing Officer failing to provide any opinion does not arise. Accordingly, on this point also, the appeals of the department are liable to be dismissed. 22 . At this juncture, we would like to stress that the re-assessment proceedings under Section 147 of the Act do not provide for re-assessment on a mere change of opinion. The re-assessment on a mere of change of opinion is not permissible under law. Such change of opinion amounts to review of the order of the assessment, which is not permissible under law. In support of our opinion, we would like to press into service the Judgment of the Hon'ble Supreme Court in the case of Commissioner of Income Tax, Delhi Vs. Kelvinator of India Ltd., reported in (2010) 187 Taxman 312 or 320 ITR 561 (SC). The extract of the relevant Paragraph No.4 which reads as follows:- 4.On going through the change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to believe' in section 147.- A number of representations were received against the omission of the words 'reason to believe' from section 147 and their substitution by the 'opinion' of the Assessing Officer. It was pointed out that the meaning of the expression, 'reason to believe' had been explained in a number of court rulings in the past and was well settled and its omission from section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended section 147 to reintroduce the expression 'has reason to believe' in place of the words 'for reasons to be recorded by him in writing , is of the opinion'. Other provisions of the new section 147, however, remain the same. 23. In view of the reasons stated above, we do not find any question of law arising for our consideration in all the three appeals viz., TCA.Nos.972,973 974 of 2013. We do not find any illegality or error in the decision making process of the CIT(A)-VI and the Tribunal and therefore, the orders passed by the both Courts below are correct and s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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