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TMI Blog2015 (11) TMI 1824X X X X Extracts X X X X X X X X Extracts X X X X ..... just merely a change of opinion and nothing else. The change of opinion is not permissible in law as held by the Hon ble Apex Court in the case of Foramer France [ 2003 (1) TMI 101 - SC ORDER ] and JINDAL PHOTO FILMS LTD. [ 1998 (5) TMI 20 - DELHI HIGH COURT ] Thus we are of the view that even in post-1989 amended provision of Section 147 of the Act, change of opinion is not permissible. Accordingly, we allow this legal issue of the assessee s appeal and reverse the order of lower authorities on this issue. - Shri Mahavir Singh, JM And Shri M. Balaganesh, AM For the Appellant : Shri A. K. Gupta, FCA For the Respondent : Shri Rajendra Prasad, JCIT ORDER Per Shri Mahavir Singh, JM: This appeal by assessee is arising out of order of CIT(A)- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of assessee the assessment proceedings has been completed on 26.03.2004. The assessee before the AO raised the objection for issuance of notice u/s. 148 by stating that in this case assessment was completed u/s. 143(3) of the Act and four years has expired from the end of the relevant assessment year as on the date of issuance of notice u/s. 148 of the Act and there is no failure on the part of the assessee to make a return of income u/s. 139(1) of the Act or to disclose fully and truly all material facts necessary for its assessment for this assessment year. But the AO rejected the contention of assessee stating that in term of section 14A of the act, no deduction shall be allowed in respect of expenditure incurred by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed u/s. 143(3) of the Act. From the very opening line of the reasons, it is clear that the AO has based his entire premise for reopening the assessment and for recording of reasons the assessment records and the CBDT Circular no. 11 dated 23.07.2001. The opening lines of reasons recorded reads that, while going through the assessment records, it was found that the assessee has not disallowed any expenditure in respect of dividend income exempted u/s. 10(33) of the act. The reasons recorded only states that no expenditure has been disallowed in respect of dividend income earned and claimed as exempt u/s. 10(33) of the Act. We find that there is no allegation of any nature whatsoever that there was any omission or failure on the part of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is properly replied by the assessee, that could not give him or his successor in office a reason to reopen the completed assessment of the assessee or to contend that because the facts were considered in the assessment order, a full entry disclosure was not made. If the entire material has been placed by the assessee before the Assessing Officer at the time when the original assessment was made and the AO applied his mind to that material and accepted the view canvassed by the assessee, then merely because he did not express this in the assessment order, that by itself would not give him a ground to conclude that income has escaped assessment, and, therefore the assessment needed to be reopened. The assessee has no control over the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Allahabad High Court has held as under:- Although we are of the opinion that the law existing on the date of the impugned notice u/s 147/148 has to be seen, yet even in the alternative even if we assume that the law prior to the insertion of the new section 147 will apply even then it will make no difference since even under the original section 147 notice for reassessment could not be given on the mere change of opinion as held in numerous cases of the Supreme Court, some of which have been mentioned above. Since the Tribunal in the appeal relating to the assessee company had considered the Tribunal s earlier decision in Boudier Christian s case, it will obviously amount to mere change of opinion, and hence notice u/s 147/148 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment because such appellate order was before him at that time. Thus, it is a case of mere change of opinion which does not provide jurisdiction to the Assessing Officer to initiate proceedings u/s 147. 7. From the above facts of the case and the decision of the Hon ble Apex Court as well as Hon ble Delhi High Court in Jindal Photo Films Ltd.(supra), we are of the view that even in post-1989 amended provision of Section 147 of the Act, change of opinion is not permissible. Accordingly, we allow this legal issue of the assessee s appeal and reverse the order of lower authorities on this issue. As regards to the merits of the case, since we have decided the issue of jurisdiction in favour of the assessee and allow the appeal of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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