TaxTMI 
TaxTMI 
2016 (7) TMI 1537
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....venue was dismissed and the cross-objection of the assessee was allowed. 2. As per the facts of Tax Appeal No.1914 of 2009, the respondent is a partnership firm and it undertook the work to construct a township with one firm, M/s.Akshar Corporation. A search and seizure operation was carried out on 14.2.1994 and statement of partner of the assessee, Shri Vireshbhai D. Patel was recorded wherein he admitted that 40% on-money was charged in respect of sale of flats. Thereafter, a survey operation under Section 133A of the Act was conducted on 24.3.1999 and a print-out of trial balance was also obtained from the assessee. The assessee filed return of income for the Assessment Year 1999-2000 and the Assessment Officer determined the total inco....
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....he learned Tribunal below committed substantial error of law in misinterpreting the provision of Section 147 of the Income Tax Act, 1961 ["the Act"] by overlooking the fact that this is a case of non-disclosure of full and truthful account by the assessee and thus the case is covered under Section 147 of the Act." 4. Mr.Sudhir Mehta, learned advocate for the appellant submitted that the Tribunal has committed a serious error in holding that under Section 147 of the Act, the Assessing Officer could not have reopened the assessment for the relevant year. He has relied upon the observations of the Commissioner of Income Tax (Appeals), wherein he has observed as under:- "The first ground of appeal is regarding reopening of assessment u/s.14....
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....believe that income chargeable to tax had escaped assessment due to difference between the balance sheet and the trial balance and therefore came to the conclusion that prima-facie, income chargeable to tax had escaped assessment within the meaning of section 147. Therefore the reopening of assessment is valid and this ground is dismissed." 4.1 He submitted that the Tribunal has committed an error while passing the impugned orders, therefore, these appeals are required to be allowed by setting aside impugned orders. 5. Mr.Manish Shah, leaned counsel for the respondent contended that the Tribunal has not committed any error while passing the impugned order. He has relied upon following observations of the Tribunal in the impugned order:- ....
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....evenue in respect of questions that directly arose for decision in earlier proceedings. If that were not the legal position it would result in placing an unrestricted power of review in the hands of the assessing authorities depending on their changing moods. (See CIT v. Rao Thakur Narayan Singh (1965) 56 ITR 234, 239 (SC)". 8.5 Admittedly, in the case under consideration there is no change of law and no fresh material has come on record enabling the AO to invoke the powers under section 147 of the Act. The instant case is a case of mere change of opinion which does not provide jurisdiction to the AO to initiate proceedings under section 147 of the Act. We may also refer to a decision of the Hon'ble Gujarat High Court in Garden Silk ....