TaxTMI 
TaxTMI 
2011 (12) TMI 388
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....original return filed on 2nd Dec., 2007 may be treated as having been filed in response to the notice under s. 148 of the Act. 2.3 Before the learned CIT(A), assessee has referred to the reasons recorded for opening of notice under s. 148 of the Act as provided to him by the AO. Such reasons are available at p. 7 of the paper book and these are reproduced as under for ready reference:- "The assessee has claimed deduction under s. 80HHC amounting to Rs. 38,02,273 and Rs. 1,33,90,552 under s. 80-IA. The total export turnover over and the profits from all the business have been taken into consideration but indirect cost has been worked out taking into consideration total indirect cost of all the businesses proportionate to the export turnover of trade goods/total turnover as per above provisions of the Act. Thus, as per above the indirect cost works out as under:- Total indirect cost 15,01,229 Total turnover 10,93,05,699 Total export turnover 1,45,67,260 1,50,12,291 x 1,45,67,260 = Rs. 20,00,700 10,93,05,699 As against worked out Rs. 2,98,774 Further, as per above provisions under s. 80-IA of the Act while computing....
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....: (2002) 256 ITR 1 (Del)(FB); (vi) CIT vs. Pithwa Engg. Works (2005) 197 CTR (Bom) 655 : (2005) 276 ITR 519 (Bom)." 2.5 The learned CIT(A) after considering the submissions held that reopening of assessment is invalid after observing as under:- "I have considered the above facts and the submissions and found that the assessment is reopened under s. 148 of the Act on the ground of claiming deduction by the appellant under ss. 80HHC and 80-IA while working the deduction under ss. 80HHC and 80-IA, the total turnover, export turnover and profits from all the businesses have been taken into consideration but indirect cost has been worked out taking into consideration total indirect cost of all the businesses proportionate to export turnover of trade cost, total turnover as per above provisions of the Act. As per working of the AO, Indirect cost works out to Rs. 20,00,700 as against Rs. 2,98,774 by the appellant. The reopening involves three issues, deduction under s. 80HHC, under s. 80-IA and indirect cost for giving deduction under s. 80HHC. Further as per working of the AO given in the reasons recorded for reopening the assessment, the appellant has claim....
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....e fully and truly all material facts necessary for the assessment for that assessment year. The citations given by the Authorised Representative are also fully applicable in its case and support its point. The AO had mere change of opinion of all the three issues involved in the reassessment which has arisen out of the audit objection; the AO had already considered these issues in the original assessment order and had allowed them as claimed by the appellant. Thus, there was no material available with the AO to reopen the assessment. The law on change of opinion has disqualification for reassessment even for such proceedings within scheduled limit for four years is confirmedly established after the decision of the apex Court in Indian and Eastern Society vs. CIT, the writ also pointed out by the Supreme Court that its earlier decision in Kalyanji Mavji and Co. vs. CIT which had taken the view that escapement of income due to 'oversight, inadvertence or mistake on the part of the AO' while justifying reassessment is a proposition so widely stated and travels further than statute warrants reappraisal is permitted for reassessment. The word reason to believe in s. 147, imports the bus....
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....e of change of opinion. 3. CIT vs. P.V.S. Beedies (P) Ltd. (1999) 155 CTR (SC) 538 : (1999) 237 ITR 13 (SC):- If a fact is pointed out by the audit then reopening on the basis of factual error pointed out by the internal audit party is permissible. 4. Gruh Finance Ltd. vs. Jt. CIT (2000) 161 CTR (Guj) 100 : (2000) 243 ITR 482 (Guj):- The AO allowed depreciation on non-existent machinery though the material was available on record. There was no conscious consideration of the material and therefore, reopening of assessment cannot be considered on the basis of change of opinion. 2.7 On the other hand, the learned Authorised Representative has also relied upon following decisions:- 1. CIT vs. Shree Rajasthan Syntex Ltd. (2008) 7 DTR (Raj) 393:- In this case, if the AO has taken a decision after consideration of the facts then reopening proceedings is on account of change of opinion and that is not permissible under law. 2. CIT vs. Sambhar Salt Ltd. (2003) 183 CTR (Raj) 350 : (2003) 262 ITR 675 (Raj):- In this case, if the AO has taken a possible view then another view will not constitute "informat....