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TMI Blog2021 (4) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... by Ms.V.Pushpa, Standing Counsel For the Respondents : Mr.Vikram Vijayaraghavan JUDGMENT M.DURAISWAMY, J. Challenging the order passed in I.T.A.No.608/Mds/2012 in respect of the assessment year 2003-04 on the file of the Income Tax Appellate Tribunal, Madras A Bench, Chennai, the Revenue has filed the above appeal. 2.The brief case of the appellant - Revenue is as follows: The assessee Company is engaged in the business of manufacture and sale of Tractors engineering plastic component and two wheeler batteries and trade in trailers, implements and accessories. The assessee Company filed its return of income for the assessment year 2003-04 on 28.11.2003 declaring a total income of ₹ 32,40,89,880/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-04 on 30.11.2003 may be treated as one filed in response to the notice under Section 148. By a letter dated 21.10.2010, reasons for re-opening the assessment was sent to the assessee. A notice under Section 143(2) dated 23.09.2010 was served on the assessee. The assessee objected to the re-opening and the Assessing Officer has considered the same and completed the assessment. The Assessing Officer finalized the assessment and arrived at the revised total income at ₹ 36,20,86,590/-. Aggrieved over the assessment order, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) and the Appellate Authority allowed the appeal and held that re-opening of the assessment was not valid. Aggrieved over the order passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the questions of law that were framed in the above appeal at the time of admission were already decided against the Revenue by the Hon'ble Supreme Court of India in the judgment reported in [2010] 320 ITR 561 (SC) [Commissioner of Income Tax, Delhi Vs. Kelvinator of India Ltd.] held as follows: ... 2. A short question which arises for determination in this batch of civil appeals is, whether the concept of change of opinion stands obliterated with effect from 1st April, 1989, i.e., after substitution of Section 147 of the Income Tax Act, 1961 by Direct Tax Laws (Amendment) Act, 1987? 3. To answer the above question, we need to note the changes undergone by Section 147 of the Income Tax Act, 1961 [for short, the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in Sections 148 to 153 referred to as the relevant assessment year). 3.2. After the Amending Act, 1989, Section 147 reads as under: 147. Income escaping assessment - If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or reassess such income and also any other income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment has to be based on fulfillment of certain pre-condition and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of change of opinion as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to Section 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, hence, dismissed with no order as to costs. 6.Mr.Vikram Vijayaraghavan, the learned counsel appearing for the respondent assessee submitted that in view of the ratio laid down by the Hon'ble Apex Court in [2010] 320 ITR 561 (SC) , the questions of law may be decided against the Revenue and the appeal may be dismissed. 7.In view of the submissions made by the learned counsel on either side, following the ratio laid down by the Hon'ble Supreme Court of India in the judgment reported in [2010] 320 ITR 561 (SC) [Commissioner of Income Tax, Delhi Vs. Kelvinator of India Ltd.] , cited supra, the questions of law are decided against the Revenue and in favour of the assessee. The Tax Case Appeal is dismissed. No costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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