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TMI Blog2022 (12) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... COVID-19 pandemic and hence, the delay in filing the appeal is condoned and admitted the appeal for adjudication. 3. Facts are, in brief that the assessee company filed its return of income for the assessment year 2008-09 originally on 23.09.2008 with a returned income of Rs..3,85,36,870/-. The assessee has also filed a revised return of income on 24.09.2009 admitting an income of Rs..11,33,84,760/-. The return filed by the assessee was selected for scrutiny under CASS and notice under section 143(2) of the Income Tax Act, 1961 ["Act" in short] was issued on 23.08.2010. The assessment under section 143(3) r.w.s. 144C of the Act was completed on 09.12.2011. Subsequently, the Assessing Officer has issued notice under section 148 of the Act f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the assessment and therefore, it is change of opinion, which is not permissible in view of the judgement of the Hon'ble Supreme Court in the case of CIT v. Kelvinator India Ltd. 320 ITR 561. By considering the submissions of the assessee, the ld. CIT(A) has observed that by verifying the records which are already available with the Department during the course of scrutiny assessment, the Assessing Officer has reopened the assessment, is contrary to the above judgement of the Hon'ble Supreme Court and accordingly quashed the assessment order passed under section 143(3) r.w.s. 147 of the Act dated 12.03.2014. 5. Aggrieved, the Revenue is in appeal before the Tribunal. The ld. DR strongly supported the order passed by the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The Assessing Officer, only based on the material available on record re-examined and formed a different conclusion that there is an escapement of income chargeable to tax. The same records were already verified by the Assessing Officer and passed a detailed assessment order under section 143(3) r.w.s. 144C of the Act dated 09.12.2011. Therefore, subsequent reopening of assessment under section 147 of the Act was not based on any new or tangible material brought on record. It was only based on the material already available on record. Therefore, it can be concluded that the reopening is only change of opinion, which is not permissible as per the law laid down by the Hon'ble Supreme Court in the case of CIT v. Kelvinator India Ltd. (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four years to re-assess income on the basis of the same materials that were available with the authority as part of the record. 11. The phrase 'reason to believe' in Section 147 relates to such other new or tangible material as may have come to the knowledge of the Assessing Officer pursuant to the original proceedings for assessment. The Supreme Court in the case of Commissioner of Income Tax Vs. Kelvinator of India [2010] 320 ITR 561 / 1867 Taxmann 312 states thus in the context of the 'belief' that should form the basis for a re-assessment. 'We must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review, he has the power to reassess. But reassessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich ought to have prompted him to issue a notice under section 143(2) of the Act to conduct the proceedings under scrutiny. What is sought to be done by the reassessment ought to have been achieved by scrutiny assessment proceedings. Having missed the bus earlier, the Department cannot be permitted to avail of the extended time limit in the absence of any new or tangible material, when the time for scrutiny assessment has elapsed on 31.03.2001, prior to issue of notice u/s.148. The notice under section 148 dated 09.12.2002 is thus an arbitrary exercise of power and a review of proceedings impermissible in law." 9. Considering the landmark judgement of the Hon'ble Supreme Court in the case of CIT v. Kelvinator India Ltd. (supra), the ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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