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TMI Blog2024 (9) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... he income has escaped assessment resulting into mere change of opinion on the part of the respondent no.1. As decided in M/S. KELVINATOR OF INDIA LIMITED [ 2010 (1) TMI 11 - SUPREME COURT] conceptual difference between power to review and power to re-assess. AO has no power to review; he has the power to re-assess. But re- 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 - Decided in favour of assessee. - HONOURABLE MR. JUSTICE BHARGAV D. KA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income at Rs.NIL, where in the deduction of Rs.61,92,055/- was duly disclosed by the petitioner. 4.2 The case of the petitioner was selected for scrutiny and details were called for by the Assessing Officer, which were duly furnished by the petitioner vide letter dated 24th August, 2015 placing on record various details including the Certificate u/s.115JB of the Act. 4.3 After considering the submissions of the assessee, as well as, the Audit Report u/s.15JB, the assessment was framed u/s.143(3) of the Act and vide assessment order dated 12th February, 2016 book profit of Rs.1,39,38,703/- declared by the petitioner was determined as assessed income. 4.4 The respondent no.1 Assessing Officer thereafter issued the impugned notice u/s.148 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der-sheet entry is recorded during the assessment proceedings. It was further held that the facts enumerated have been discovered with due diligence and therefore, no further inquiry is required in the case and on the basis of the same, there are reasons to believe that the income chargeable to tax has escaped assessment. 5. Mr. Tushar Himani, learned Senior Advocate for the petitioner submitted that it is not in dispute that the petitioner has disclosed fully and truly all material facts during the course of the regular assessment conducted u/s.143(3) of the Act and the deductions under Item (iii) to proviso to Section 115JB of the un-absorbed depreciation or business loss which ever is less is claimed by the petitioner which is duly refle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition should not be entertained ignoring the statutory dispensation. 7. It was submitted that the petitioner filed written of income on 27th September, 2013 declaring total income of Nil in the book profit and the case was selected for scrutiny assessment. However, the Assessing Officer during the course of regular assessment has not considered the applicability of item-(iii) of proviso to Section 115JB of the Act and as it is evident from the record that the petitioner has wrongly claimed an amount of Rs.61,92,055/- being unabsorbed depreciation or business loss, which ever is less. It was therefore submitted that in view of the above, no interference is called for by this Court while exercising extraordinary jurisdiction under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change of opinion on the part of the respondent no.1. 10. In view of the settled legal position, the Hon ble Supreme Court in case of Commissioner of Income tax v. Kelvinator of India Ltd., reported in (2010) 320 ITR 561(SC) in such circumstances has held as under: 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? xxxx 6. prior to Direct Tax Laws (Amendment) Act, 1987, re-opening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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