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TMI Blog2022 (10) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... comment was offered by the AO.
Merely, no query was raised or no view was expressed in the assessment order will not tantamount that the material available before the AO was not considered by him and once the issue has been examined by the AO in the original assessment proceedings, then it is not open for the AO to change his view.
Thus reopening proceedings initiated and assumption of jurisdiction u/s 147 by the AO, without any fresh information against the assessee to establish the allegation which could validate the reopening u/s 147 thus in the present case the assumption of jurisdiction u/s 147 is beyond the authority of law - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority was not disputed. Ld DR had strongly supported the order of AO on this issues and drew our attention to the findings of the Ld CIT (A) which reads as under:- Ground No. 1 -That on the facts and in the circumstances of the case, the notice issued u/s 148 bad in law as well as on facts. Decision - The AO has discussed the issue from Para 5 to 8 of his assessment order. The learned AR had submitted that in case of CIT vs. Tutuaja Tea Company 236 ITR 447 the Hon'ble Apex Court held that information which was with the AO at the time of original assessment cannot be used for opening assessment u/s 147. He had also relied on Hon'ble I TAT Raipur decisions in case of Narayan Singh Calara vide ITA No. 92/BLPR/2010 and argued that the assessing officer is not permitted to reopen the case on the basis of change of opinion. The decision has been carefully considered. In case of The Hon'ble Apex Court the decision has been rendered when the information already under possession of the AO and he did not utilized in the original assessment. After completion of assessment the Hon'ble Apex Court has held that multiplicity of the proceedings should have been avoided and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no question of change of opinion. Thus in my considered view there is no infirmity in the assumption of jurisdiction by the learned AO. The ground of appeal is dismissed. Ground No. 2 - That the facts and in the circumstances of the case, the learned Assessing Officer erred in taking the value u/s 50C without referring it to the valuation officer. Decision - The assessee has sold capital asset, a plot of land owned by him. Section 50C is applicable for the deemed sale consideration in case of land or land and building. I do not find any force in the arguments of the learned AR and do not find any error in the application of value of the plot as per stamp valuation authority who has assessee its value at Rs. 14,40,000/-. The ground of appeal is dismissed. 6. Ld DR, finally concluded with the remark that the revenue authorities had very judiciously dealt with the above issues and thus their orders are liable to be upheld. 7. We have considered the rival submissions and perused the record carefully. 8. The first issue raised by the assessee was regarding issuance of notice u/s 148 bad in law. On this issue, it is emanated from the order of AO that the assessee had s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings, then it is not open for the Assessing Officer to change his view. Thus, the legal precedence laid by the Hon'ble Apex Court in the case of Kelvinator India Ltd. 320 ITR 561 (SC) will squarely applicable in this case, where in it has been held that: On going through the changes, quoted above, made to Section 147 of the Act, we find that, 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 Officer to make a back assessment, but in section 147 of the Act [with effect from 1st April, 1989], they are given a go-by and only one condition has remained, viz., that where the Assessing Officer has reason to believe that income has escaped assessment, confers 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the new section 147, however, remain the same." 12. In an order of the Hon'ble Delhi High Court in the case of Rasalika Trading & Investment Co. (P.) Ltd. Vs. DCIT, dated 14.02.2014, reported in 365 ITR 447, wherein the issue with respect to use of information available at the time of original assessment u/s 143(3), which was apparently used by the AO for competing the assessment has been precisely explained. Such information was acknowledged as "stale information" and therefore based on such information an attempt to use the provisions of section 147 and initiating proceedings were termed as a result of change of opinion. This ratio laid down by the Honble Delhi High court was in line with the principle laid down by the Honble Apex Court in the case of Kelvinator India Ltd. (supra), the findings of the Hon'ble High Court is reproduced as under:- "It is evident from the above discussion that the reassessment proceedings were initiated by the impugned notice which expressly and plainly states that "reasons to believe" are based upon the materials contained in an investigation report of 13.3.2006. The notice itself does not spell out that the report was not on the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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