2011 (5) TMI 959

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....t of the brought forward losses before allowing the deduction u/s 10A of the I.T.Act. 3. The Ld.CIT(A) ignored the fact that each year is unique in itself and stand taken by the revenue in particular year is not binding for earlier and subsequent years." 2. Learned DR relied on the order of the Assessing Officer and contends that the learned CIT(A) has erred in holding that the AO had no reason to believe for reopening the assessee's assessment and there was no tangible material and the reassessment amounted to change of opinion. On merits also, reliance is placed on the AO's order. 3. Learned counsel for the assessee, on the other hand, vehemently argues that the assessment was originally framed u/s 143(3) on 27.3.2006 wherein the....

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....opinion" is removed, as contended on behalf of the department, then, in the grab of reopening 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 AO. Hence, after 1st April 1989, AO has power to reopen, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation to belief. 2.3 Accordingly, in view of the above legal and factual position, I have no hesitation in holding that the reopening of assessment in terms of section 147 of the IT Act 1961 for the assessment year 2003-04 is not sustainable in law." 5. On merits also, the issue is covered i....

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....ed before setting off of brought forward business losses and unabsorbed depreciation." 6. Learned counsel for the assessee in support of his proposition relied on the judgments of ITAT Bangalore Bench in the cases of GE India Exports (P) Ltd. Vs. DCIT, Yokogawa India Ltd. Vs. DCIT, AXA Business Services (P) Ltd. Vs. ACIT and ITO Vs. Aditi Technologies (P) Ltd. Learned counsel then relies on ITAT judgment in the case of Scientific Atlanta India Technology (P) Ltd. Vs. ACIT - 129 TTJ (Chennai)(SB)273. In this judgment, the Tribunal has held as under:- "27. Having held that the deduction under s. 10A is not an exemption but only a deduction under Chapter III of the IT Act and the provisions of s. 80AB of Chapter VI-A would not be applica....

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....urther decided the issue once again by order u/s 154 dated 1.5.2006. There cannot be any doubt to the effect that AO has applied his mind to the whole issue and thereafter came to the conclusion and accordingly, he framed the original assessment as well as subsequent 154 order. We find merit in the arguments of the learned counsel that Hon'ble Delhi High Court in the case of Kelvinator of India Ltd. (supra) has categorically held that an assessment cannot be reopened merely by change of opinion. Consequently, the view adopted by the CIT(A) is in conformity with the judgment of Hon'ble Delhi High Court . Department has not brought to our notice any other tangible material which may have been relied on by the AO in forming his belief ....