TaxTMI 
TaxTMI 
2019 (5) TMI 275
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....stomers. It was failure on the part of the assessee, in truly and completely disclosing all the material facts which led to initiation of proceedings u/s 148 as held in the following cases: a. CIT vs. PVS Beedies P. Ltd. [1999] 237 ITR 13 (SC): b. CIT vs. Sun Engineering Works P. Ltd. [1992] 198 ITR 197 (SC): c. ITO vs. Sarabhai M. Lakhani [2000] 243 ITR 01 (SC): d. Raymond Woolen Mills Ltd. Vs. ITO [1999] 236 ITR 34 (SC): 2. Whether the Commissioner of Income Tax (Appeals), Jammu was right in deleting the addition u/s 68 of the I.T. Act, 1961 on account of unexplained cash deposits made by the AO as the relief has been mainly allowed on the basis of additional evidences produced during the appeal proceedings. Such evidences were not produced during the assessment proceedings but were claimed by the assesses to have been rejected by the AO at the time of assessment. This is not the case as nothing in the file suggests that evidences were produced and rejected by the then AO. 3. Whether the Commissioner of Income Tax (Appeals), Jammu was right in deleting the addition u/s 68 of the I.T. Act, 1961 on account of unexplained cash de....
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....liance is placed on the judgment of Hon'ble Supreme Court of India in the case of CIT Vs Kelvinator of India Pvt. Ltd (2010) 320 ITR 561 in which the Hon'ble Apex Court held that after 1st April, 1989, power to reopen is much wider-However, mere "change of opinion" cannot per se be reason to reopen. AO has power to reassess but no power to review. If the concept of "change of opinion" is removed, as contended on behalf of the Department, review would take place in the grab of reopening of assessment. Concept of "change of opinion" is an in-built test to check abuse of power by the AO. The Hon'ble court further held that there is conceptual difference between power to review and power to reassess which is to be kept in mind. The AO has no power to review, he has power to reassess. But reassessment has to be based on fulfillment of certain precondition and if concept of 'change of opinion' is removed, as contended on behalf of the department , then , in the grab of reopening the assessment, review would take place. The Apex court concluded that mere change in opinion cannot per se be reason to reopen. Reliance is placed on the judgment of Hon'ble High....
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..... At the time of the original assessment the Assessing Officer did not think of setting off the loss of the third unit with the other two units and therefore the reassessment on a mere change of opinion is invalid. I have gone through the submission of the appellant and assessment order. It is observed that to constitute a valid reason to believe there must be some new material coming into light with the assessing officer and merely a change of opinion cannot constitute a reason to believe. If the assessee has disclosed basic and all the facts truthfully during the course of assessment and the assessment is completed, later on, notice u/s 148 can not be issued merely because there is another inference possible from the same documents and the facts placed before the assessing officer during the course of assessment. It will amount to change of opinion. There must be some new material of facts coming into light for action u/s 147/148. But if the assessee has suppressed some relevant facts which leads to concealment of income and later those facts come before the assessing officer the notice u/s 147/48 can be issued validly. In the present case, there is nothing on record to ....
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....ve paid advances along with their postal address as additional evidence under rule 46A. All these documents were forwarded to the AO for verification and his comments there on. The AO did not made any effort to make verifications from the customers in respect of advances and made comments that these documents were not produced at the time of assessment. There is no power with the AO to refute the decision taken by me under rule 46A to admit additional evidence in the interest of justice. It was the duty of the AO to verify the documents forwarded to him in remand proceedings which he failed to do. It is also observed that it is the normal practice of the appellant to receive advances from the customers as the same are reflected in the audited balance sheets of preceding as well as succeeding assessment years and the financial statements of the year under consideration reflecting the advances from customers are duly audited by a chartered accountant. As the appellant has fully explained the details of deposits in bank accounts and the AO has not provided any thing contrary to the explanations of the appellant in his remand report except that some of these details were not available ....
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.... based upon the change of opinion and therefore, is invalid and illegal and any proceedings carried out therein is also illegal and void-ab-initio. 5.1 We have independently applied our mind to the facts and circumstances of the case as well as orders passed by the authorities below. The Ld. DR relied upon the order passed in Sevak Ram vs. Income Tax Officer, 263 CTR 463 [2010] by the Jurisdictional High Court and submitted that reasons can be given on the basis of particulars of return without any new material and further submitted that if satisfaction is arrived at on the basis of any relevant material, such satisfaction can be assailed. Before us, it is not the case of the Revenue that the previous Assessing Officer has not considered the relevant documents and/or claims of the assessee while passing an assessment order u/s 143(3) of the Act. The law qua reason to believe, is well settled by the Apex Court in the case of CIT vs. Kelvinator of India Pvt. Ltd. (supra) wherein the Apex Court laid down the dictum of the decision. "Reliance is placed on the judgment of Hon'ble High Court of Delhi (Full Bench) in the case of CIT Vs Kelvinator of India Ltd (2002) 256 IT....
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....observed by the Ld. CIT(A) that the Assessing Officer is not empowered to refute the decision taken by the Commissioner under Rule-46A of the Rules to admit additional evidence in the interest of justice. Further observed that it was the duty of the AO to verify the documents forwarded to him in earlier proceedings which he failed to do so. The Ld. CIT(A) also observed that it is the normal practice of the appellant to receive advances from the customers as the same are reflected in the audited balance sheets of preceding as well as succeeding assessment years and the financial statements of the year under consideration reflecting the advances from customers are duly audited by a chartered accountant. It was further observed by the Ld. CIT(A) that as the appellant has fully explained the details of deposits in bank accounts and the AO has not provided any thing contrary to the explanations of the appellant in his remand report except that some of these details were not available at the time of assessment. Finally, the Ld. CIT(A) held the addition as unjustified and consequently deleted the same. The Ld. DR argued that the Ld. CIT(A) also not justified in holding that Assessing Offi....