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TMI Blog2023 (8) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... DER ] and Techspan India Private Limited -[ 2018 (4) TMI 1376 - SUPREME COURT ] So we do not find any merit of ground for the assessment years 2004-05 and 2005-06. Revision u/s 263 - as per CIT AO had fail to apply the correct provisions of Section 12(1) - HELD THAT:- The findings of fact recorded by the CIT(Appeals) had been confirmed by the Tribunal in all these appeals holding that these findings had not been assailed by the Revenue through any evidence or material on record; and therefore it is established that the assessee utilized the fund for the purpose of achieving its objective, and that the utilization was more than the prescribed limit, consequent upon which there was no reason to make additions against the assessee. After considering the facts and circumstances and the contentions of the Revenue, we are satisfied that no question of law much less substantial question of law arises for consideration in these appeals and we hold that the findings recorded by the Tribunal cannot, in the facts and circumstances, be said to be perverse. - ( M.S. Ramachandra Rao ) Chief Justice And ( Ajay Mohan Goel ) Judge For the Appellant : Mr. Vinay Kuthiala, Senior Advocate with Ms.Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019, ITA no.30 of 2019 and ITA no.32 of 2019 for the assessment years 2006-07, 2007-08, 2008-09 and 2009-10, respectively questions 2, 3 and 4 raised in ITA no.1 of 2020 arise. In addition, according to the Revenue, the following question also arises in these 4 appeals: Whether on the facts and in the circumstances and in law, the order of the Appellate Tribunal is contrary to the evidence and material on record of the case and therefore perverse? 5. We may point out that these appeals had initially been filed before the High Court of Punjab and Haryana, but the said High Court had returned the same in 2016 directing the Revenue to file them before the Court of competent jurisdiction, and thereafter these appeals were filed in this Court and they were numbered, after condoning the delay, if any, in filing the same, and after making of suitable amendments in the grounds of appeals. The back ground facts 2004-05 and 2005-06 6. The background facts are that a return was filed by the respondent-assessee for the assessment years 2004-05 and 2005-06 after claiming exemption under Section 11 of the Act. 7. The cases of the assessee were, however, re-opened under Section 147 of the Act for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy earmarked funds had not been included in the income of the assessee for determining 85% utilization of the same; and the assessee had also been specifically asked to state the amount of corpus donations received alongwith evidence through a questionnaire dt. 1st September, 2006; that the assessee had also duly explained the nature of earmarked funds as being given for a specific purpose and hence treated as corpus funds by the assessee; evidences in the form of letter of the donees had also been submitted vide a letter dt. 8th September, 2006; thereafter assessment order under Section 143(3) of the Act was passed without making any addition on account of corpus funds, meaning thereby that after examining the issue of corpus/funds, the Assessing Officer had formed an opinion that they were corpus funds, and hence were not to be included in the income of the assessee. The Tribunal held that having thus formed an opinion on the treatment of earmarked funds shown as Funds Pending Utilization , the Assessing Officer could not have resorted to re- opening the case of the assessee on the same issue, since it amounts to change of opinion which cannot be resorted to in re-assessment proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to believe in Section 147 of the Act cannot be interpreted to have the consequence of conferring arbitrary powers on the Assessing Officer who may even initiate such reassessment proceedings merely on his change of opinion on the basis of same facts and circumstances which has already been considered by him during the original assessment proceedings; and it would empower the Assessing Authorities to re- assess any income on the ground which was not brought on record during the original proceedings and escaped his knowledge and the said fact would have material bearing on the outcome of the relevant assessment order. Thus on account of a mere change of opinion, re-assessment proceedings cannot be initiated by assessing office. This has been reiterated in Assistant Commissioner of Income Tax, Mumbai and others vs. ICICI Securities Primary Dealership Limited (2012) 13 SCC 514 and Income Tax Officer, Ward No.16(2) vs. Techspan India Private Limited and another. (2018) 6 SCC 685 So we do not find any merit in ITA no.1 of 2020 and ITA no.28 of 2019 for the assessment years 2004-05 and 2005-06. ITA. no.31 of 2019 and ITA no.29 of 2019, ITA no.30 of 2019 and ITA no.32 of 2019 14. Coming ..... X X X X Extracts X X X X X X X X Extracts X X X X
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