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TMI Blog2021 (4) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the re-opening of the assessment in this case is bad in law. This finding of the ld. CIT(A) is challenged before us by the Revenue. 3. We have heard Sh. Supriyo Pal, ld. D/R on behalf of the Revenue and Sh. A.K. Tibrewal, the ld. Counsel for the assessee on behalf of the assessee. On a careful consideration of the facts and circumstances of the case, perusal of the papers on record and the case law cited, we hold as follows. 4. The facts of the case are extracted for ready reference: "The facts of the case are that the original Return was filed, within time, u/s. 139(1] of the Act, showing total Income of Rs. 1,47,81,030/-, which inter alia included House Property income of Rs. 2,46,23,873/-. The Return was selected for scrutiny and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 respectively with right to renewal for similar two successive terms. Clause 4 of the said Deed of Lease inter alia provided that if the lessee opted for early termination of the lease during the lock-in-period of the first term of 5 years, then the lessee should be liable to pay rent for the remaining period the said lock-inperiod of 5 years. In September 2008, both the lessee company called for termination of the agreement to and agreed to pay the lessor an amount of Rs. 1,08,37,583/- and Rs. 92,72,457/- respectively as one time compensation to the lessor towards termination of the Lease Agreement. Meanwhile, both the lessee companies had been amalgamated with Motorola India Pvt. Ltd. on 10.10.2008 and Motorola India Pvt. Ltd. paid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of the Act on 08/12/2011 the Assessing Officer applied his mind to all the material submitted before him by the assessee and accepted the view canvassed by the appellant with regard to the appellant's claim of compensation receipt as capital receipt." 4.3. Thereafter, the finding of the ld. CIT(A) held as follows: "I find that the appellate disclosed all the material facts in original assessment and after completion of the original assessment any fresh material was not brought on record by the AO. On the contrary, it is apparent from a reading of the reasons recorded u/s. 148(2) that after completion of the original assessment, the Assessing Officer changed opinion on the same set of materials and/or evidences which had already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that a case cannot be re-open on the basis of change of opinion." 5. The ld. D/R could not controvert to this factual finding of the ld. CIT(A). Thus this is a clear case of change of opinion and hence the re-opening of assessment based on mistake of opinion is bad in law. 5.1. Even otherwise the re-opening is beyond the period of four years and the original assessment was completed u/s 143(3) of the Act on 08.12.2011. In the reasons recorded, there is no whisper that the assessee has failed to disclose truly and fully all material facts required for assessment. In the absence of such an allegation the reopening is bad in law as the proviso to Section 147 comes into play. 6. In view of the above discussion, we uphold the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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