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TMI Blog2024 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... er is relevant but it can also be determined from record. It is for AO to determine how to frame an order. The issue accepted may not be even discussed in the order and assessee is not responsible for this. Non recording of reasons by the AO in assessment order for accepting the explanation on an issue shall not make a foundation for reassessment on same issue as AO had already dealt with it and formed an opinion. The issue of deduction u/s 54B was raised and discussed in the assessment proceedings. The explanation of petitioner on the issue was accepted and deduction u/s 54-B of the Act was allowed. It is inferred that AO formed an opinion albeit, not recorded the reasons for it. The notice issued u/s 148 for assessment year 2009-2010 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10) 320 ITR 561 and Full Bench decision of the Delhi High Court in the case of Commissioner of Income Tax-VI, New Delhi Vs. Usha International Limited reported in (2012) 348 ITR 485. 4. As per contra the AO had not dealt with the issue of deduction claimed under Section 54-B of the Act. The contention is that land was sold by brothers of petitioner and the deduction under Section 54B of the Act could not have been claimed by petitioner. 5. The assessment of the petitioner for AY 2009-10 under section 143 (3) of the Act was finalized on 29.12.2011. During the assessment proceedings, notice dated 14.12.2011 was issued for furnishing information called for therein. The content of notice dated 14.12.2011 is reproduced:- Sub:- Assessment proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO gave up two issues raised in the notice and made an addition of Rupees Fifty Thousand for unexplained investment in purchase of land. An addition of bank interest receipts shown short to the tune of Rs. 3,960/- was also made. 6. The notice dated 31.03.2014 under section 148 of the Act was issued. The reasons for reopening were: The Long term capital gain shown before claim deduction u/s 54B of Rs. 9,97,577/- perusal of relevant sole deed of the Land (Plots) in the case of brother of the assessee, Shri Dinesh Saini. It reveal that the sale of said pieces of Land are Shri Dinesh Saini Suresh Saini. Thus, the assesse is not the owner of Land. The Land sold, hence deduction u/s 548 is not allowable his hand and accordingly the receipt i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfers jurisdiction to re-open the assessment. Therefore, post-1st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words reason to believe failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of mere change of opinion , which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in Income Tax Officer Ward No. 16(2) Vs. TechSpan India Private Ltd. and Ors. reported in (2018) 6 SCC 685 held as under: 12. Before interfering with the proposed reopening of the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. For concluding that AO had applied mind to an issue not only assessment order is relevant but it can also be determined from record. It is for AO to determine how to frame an order. The issue accepted may not be even discussed in the order and assessee is not resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und or reason to make addition or reject the stand of the assessee. He forms an opinion. The reassessment will be invalid because the Assessing Officer had formed an opinion in the original assessment, though he had not recorded his reasons. 13. In the second and third situation, the Revenue is not without remedy. In case the assessment order is erroneous and prejudicial to the interest of the Revenue, they are entitled to and can invoke power under Section 263 of the Act. 13. The Bombay High Court in Bedmutha Industries Ltd. v. Deputy Commissioner of Income Tax reported in 2012 SCC Online Bom 829 held as under: 8. It was submitted that the issue regarding depreciation on goodwill and set off of unabsorbed depreciation was an issue consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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