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TMI Blog2008 (7) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... rji with P. P. Bhosale, for the respondents. JUDGMENT 1. Rule. Returnable forthwith. Heard finally by consent of parties. 2. The Petitioner is a company engaged in the business of trading and investments. The Petitioner is regularly assessed to income-tax. This petition relates to the assessment year 2003-04. This petition is directed against the notice dated 27th December, 2006 issued under Section 148 of the Income-tax Act for reopening of the assessment for the assessment year 2003-04. The Petitioner raised an objection to the notice. That objection has been rejected by order dated 14th May, 2008. Thus, by this petition the Petitioner challenges the notice as also the order dated 14th May, 2008 rejecting the objection. 3. According t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner submits that the Petitioner had in returns given necessary details for claiming deduction under Section 80M. A Perusal of assessment order shows that the Assessing Officer after applying his mind by a specific order allowed deduction under Section 80M and now, therefore, it cannot be claimed that the deduction was wrongly allowed. In any case, according to the learned Counsel, the power under Section 147 cannot be used to review the order made by the authorities. 6. The learned counsel for the Petitioner relies on two judgments, one of the Full Bench of the Delhi High Court in the case of the Commissioner of Income-tax v. Kelvinator of India Ltd., (2002) 256 ITR 1 and another of Division Bench of this Court in the case of German Remedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Delhi High Court in the case of Kelvinator of India Ltd., (2002) 256 ITR 1 referred to above, that under Section 147 assessment cannot be reopened on a mere change of opinion. Considering this aspect of the matter, the Full Bench of the Delhi High Court in the case of Kelvinator of India Ltd.(2002) 256 ITR 1 has observed thus (page 19): "When a regular order of assessment is passed in terms of the said sub-section (3) of Section 143 a presumption can be raised that such an order has been passed on application of mind. It is well known that a presumption can also be raised to the effect that in terms of clause (e) of Section 114 of the Indian Evidence Act judicial and official acts have been regularly performed. If it be held that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer does not possess the power of review, he cannot be permitted to achieve the said object by taking recourse to initiating a proceeding of reassessment or by way of rectification of mistake. In a case of this nature the Revenue is not without remedy. Section 263 of the Act empowers the Commissioner to review an order which is prejudicial to the Revenue." 10. It is, thus, clear from the observations quoted above that power under Section 147 cannot be used like the power of review to reopen the assessment and this is precisely what has been done in the present case. The Division Bench of this court in its judgment in the case of German Remedies Ltd. (2006) 285 ITR 26, referred to above, has taken the same view. In our opinion, followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g decision of this Court and the decision of the Income-tax Appellate Tribunal there is no scope for entertaining the belief that the income has escaped assessment. However, the said objection had been rejected without even considering the said binding decision. Therefore, it is necessary to find out as to whether the conditions precedent for invoking the jurisdiction to reopen the assessment have been met or not." 11. So far as the present case is concerned, it is clear that in the present case proceedings under Section 147 are initiated only because of change of mind or change of opinion by the respondent No.1, and therefore, in our opinion, in view of the settled law, it cannot be said that the respondent No.1 was justified in issuing t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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