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TMI Blog2023 (12) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... nd interest are not allowable to the assessee in view of the provisions of Section 184(5) of the Act. In the case of CIT vs. Bhanji Lavji [ 1971 (1) TMI 6 - SUPREME COURT] held that when primary facts necessary for assessment are fully and truly disclosed, the Assessing Officer is not entitled on change of opinion to commence proceedings for reassessment. In the case of CIT vs. Kelvinator of India Ltd. [ 2010 (1) TMI 11 - SUPREME COURT] held that the concept of 'change of opinion' must be treated as an in-built test to check abuse of power by AO - The Hon ble Supreme Court held that Assessing Officer has no power to review. In this case it was held that the AO can re-open the case only when there is tangible material would co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer is only seeking to make a disallowance on account of re-appreciation of law with respect to the same set of facts which were present before him during the course of original assessment proceedings. This is a case of mere change of opinion, which is not permissible in law. Accordingly, we are of the considered view that the 147 proceedings are liable to be set-aside, looking into the instant facts. Decided in favour of assessee. - Smt. Annapurna Gupta, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member For the Appellant : Ms. Saumya Pandey Jain, Sr. DR For the Respondent : None ORDER PER SIDDHARTHA NAUTIYAL, JM: This appeal has been filed by the Revenue against the order passed by the Ld. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act on 24.12.2008 in which certain additions amounting to Rs. 8,81,120/- were made by the Assessing Officer. 4. In appeal, Ld. CIT(A) allowed relief to the assessee to the extent of Rs. 8,26,820/-. Thereafter, the Assessing Officer re-opened the case of the assessee under Section 147 of the Act after recording the following reasons:- In the instant case, order u/s. 144 of the IT Act, 1961 was passed on 24/12/2007. While passing this order, remuneration and interest amounting to Rs. 1,83,200 and Rs. 1,87,537/- respectively claimed by the assessee has been allowed which was otherwise not allowable to the assessee in view of the provisions of section 184(5) of the IT Act. Therefore, the undersigned has reason to believe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad assessed the assessee as a registered firm and not as an AOP and had specifically allowed remuneration and interest to partners. It was submitted that the case of the assessee was reopened beyond the period of four years from the end of the relevant assessment year and there was no new material on record to initiate such re-assessment proceedings. It was submitted before us that it is a settled legal position that no re-assessment is possible on account of a mere change in opinion. It was submitted that in the original assessment proceedings all the facts were on record and the Assessing Officer had assessed the assessee as a registered firm and not as an AOP and has specifically allowed remuneration and interest to partners. Further, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f framing the assessment. In the instant case on perusal of reasons recorded while initiating 147 proceedings, it is observed that re-assessment proceedings were initiated on the ground that remuneration and interest amounting to Rs. 1,83,200/- and Rs. 1,87,537/- are not allowable to the assessee in view of the provisions of Section 184(5) of the Act. In the case of CIT vs. Bhanji Lavji 79 ITR 582 (SC) , the Hon ble Supreme Court held that when primary facts necessary for assessment are fully and truly disclosed, the Assessing Officer is not entitled on change of opinion to commence proceedings for reassessment. In the case of CIT vs. Kelvinator of India Ltd. 320 ITR 561 (SC) , the Hon ble Supreme Court held that the concept of 'chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that any fresh or new material had been unearthed which would lead to the conclusion that income had escaped assessment in the original assessment proceedings on account of failure on part of the assessee to fully and truly disclose all material facts during the course of original assessment proceedings. In this case, it is observed that the Assessing Officer is only seeking to make a disallowance on account of re-appreciation of law with respect to the same set of facts which were present before him during the course of original assessment proceedings. However, in our considered view, looking into the facts of the instant case and the judicial precedents on the subject referred to above, this is a case of mere change of opinion, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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