TaxTMI 
TaxTMI 
2018 (6) TMI 402
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....here was some mistake in the said determination which was rectified by the A.O. vide an order dated 07.02.2008 passed under section 154 reducing the total income of the assessee to Rs. 82,950/-. Thereafter, the A.O. noticed that there was some difference in the sale figure shown by the assessee as accepted in the assessment completed under section 143(3). He, therefore, reopened the assessment and issued a notice under section 148 after recording the reasons. In response to the said notice, the return of income was filed by the assessee on 02.11.2010 declaring the same income as shown in the return originally filed on 22.05.2005. Thereafter the assessment was completed by the A.O. under section 143(3) read with section 147 vide an order dated 16th June, 2011 determining the total income of the assessee at Rs. 66,15,863/- after making additions of Rs. 58,25,540/- and Rs. 7,07,373/- on account of undisclosed sales and unexplained purchases respectively. 3. Against the order passed by the A.O. u/s 143(3) / 147, an appeal was preferred by the assessee before the Ld. CIT(A) challenging the validity of the said assessment as well as disputing both the additions made therein on merit. ....
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..... 79,96,575/-. Besides, I have also checked the monthly figures [with cumulative ones under 'the closing balance' in the sales register] in the computerized sales register. There is no arithmetical mistake. Thus, I have reason to believe the difference of Rs. 79,96,575/- (seventy nine lakhs ninety six thousand five hundred and seventy five) [chargeable to tax] escaped assessment u/s 143(3) within the meaning of section 147. We have also noted the purchase amount debited in the P& L A/c. It is Rs. 10,64,58,865/-. The assessee has given a party-wise break up [for parties Rs. 50,000/- or more] and it gives a total of Rs. 10,64,58,865/-. Obviously, the suppliers, the assessee means to say, are all of Rs. 50,000/- or more. In course of assessment proceedings, an extract of computerized purchase register was given, wherein monthly purchase amount was furnished. They give a total purchase amount of the year at Rs. 10,57,65,988/- (rounded off). The figure has been recalculated and no arithmetical error found in its cumulative figure. So, according to me, if suggests that the difference in figure that is Rs. 6,92,877/- chargeable to tax had escaped assessment within the meaning of ....
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....s available with the A.O. during the course of a scrutiny assessment proceeding cannot be used to reopen the assessment relevant case laws are as follows: * The matter is covered by the decision of the Apex Court in the case of CIT vs Tarajan Tea Co. (P) Ltd. reported in 236 ITR 447 (SC) wherein it was held that - 'Information which was with the A.O. at the time of original assessment cannot be used for reopening the assessment u/s 147. * In the case of ITO vs Nawab Mir Barkat Ali Khan Bahadur (1974) reported in 97 ITR 239 (SC), it was held that - 'second thoughts on the same material and omission to draw the correct legal presumption during original assessment do not warrant the initiation of a proceeding u/s 147. * In the case of Sirpur Paper Mills Ltd. vs ITO (1978) reported in 114 ITR 404 (AP), it was held that - 'income tax department cannot be permitted to bring fresh litigations because of new views to entertain the facts or new version which they present as to what should be the inference or proper inference either of the facts disclosed or the weight of the circumstances. * It was held in the case of CIT vs George Williamson (Assam) Ltd.....
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.... It is observed that the assessment completed by the A.O. under section 143(3) / 147 of the Act has been annulled by the Ld. CIT(A) vide his impugned order by holding the same to be invalid on the ground that the reopening of assessment by the A.O. itself was bad in law. While arriving at this conclusion, the Ld. CIT(A) has taken note of the fact that the assessment originally completed u/s 143(3) was reopened by the A.O. on the basis of the same information which was available on record at the time of completion of original assessment u/s 143(3) and in the absence of any new material or information coming to the possession of the A.O., the reopening was based on a mere change of opinion which is not permissible. In support of this conclusion, he has relied on the very judicial pronouncements as discussed in his impugned order. While supporting this conclusion drawn by the Ld. CIT(A), the learned counsel for the assessee has invited our attention to the reasons recorded by the A.O. (copy placed at page no 4 of the Paper Book) which read as under: Assessment was made u/s 143(3) of the Income-tax Act 1961 on 20.12.2007 by the then A.O. as rectified u/s 154 on 07.02.2008. Aft....
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....ng of section 147 because of inflated debit entries in the P & L A/c. 7. A perusal of the reasons recorded by the A.O. clearly shows that the assessment originally completed u/s 143(3) was reopened by him on the basis of the same set of facts and same material as were available with him at the time of completion of assessment originally u/s 143(3) and there was no new tangible material tht had come to his possession which formed the basis of reopening of assessment. At the time of hearing before us, the Ld. DR has not been able to dispute this position clearly evident from the reasons recorded by the A.O. He, however, has contended that the issue relating to the difference in sales noticed by the A.O. was not examined by him during the course of original assessment proceedings u/s 143(3) and since there was no expression of opinion on this issue in the said assessment, it cannot be said that the reopening was based a mere change of opinion. We are unable to accept this contention of the learned DR. As held in the various judicial pronouncements including the decision of full bench of Hon'ble Delhi High Court in the case of CIT vs Kelvinator of India Ltd. 123 TAXMAN 433, when the....