AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 1085
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....he stage of original assessment and the reopening was only due to change of opinion, without appreciating that the Assessing Officer had not formed any opinion at all on the issue in question at the time of the original assessment and the assessment had been reopened within the period of four years?" 3. Learned Senior Standing Counsel for the Appellant/Revenue Mr.T.Ravikumar submitted that in the original Assessment Order under Section 143(3) of the Act for the Assessment Year 2003-2004 dated 17.3.2006 the issue regarding the payment of Technical Know-How Fees of Rs. 9,63,81,500/- was not discussed by the Assessing Authority and merely because the Assessee had produced relevant Books of Accounts before the Assessing Authority in the course of Assessment under Section 143(3) of the Act, it cannot be said to be a case of reassessment on a mere change of opinion under Section 147/148 of the Act and therefore, the learned Tribunal has erred in holding that reopening of the Assessment is not valid, by its impugned order. He relied upon the following decisions in support of his contention:- i) Dr.Amin's Pathology Laboratory v. JCIT and others (252 ITR 673 (Bom)) ii) Consolidated....
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....ssessed income separately by the Assessing Authority in the Assessment Order under Section 143(3) of the Act, vide para 3 thereof. Therefore, once the conscious consideration of the said payment of Technical Know-How Fee has already been made by the Assessing Authority in the earlier Scrutiny Assessment under Section 143(3) of the Act therefore, the re-assessment on a mere change of opinion to treat it as part of capital asset and allow only depreciation thereon was not permissible and therefore, the learned Tribunal was justified in setting aside the re-assessment order. 6. The learned counsel for the Assessee further drew our attention to the reasons recorded by the Assessing Authority under Section 148 of the Act for the Assessment Year 2003-2004 in which the learned Assessing Authority has clearly taken note of the order passed by the Transfer Pricing Officer on 9th March 2006 regarding the Technical Know How-Fee of Rs. 9,63,81,500/- in the said reasons recorded. Therefore, even while issuing such reassessment notice, the learned Assessing Authority was aware of the previous consideration of the said payment of Technical Know-How Fees made by the Assessee. He, therefore, submi....
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....ly, the AO would discuss issues in the assessment order on which there are disputes between the AO and the assessee. Where the AO accepts the explanation of the assessee normally such issues would not be discussed in the assessment order. The fact that the AO has called for the details in the course of original assessment proceedings is not disputed. Once the details are called for and they are submitted it is presumed that the AO has applied his mind to the issues for which the details have been called for. The fact that no discussions or additions or disallowances have been made in the course of the assessment order passed originally would show that the AO has found the claim of the assessee to be reasonable and acceptable. Thus the AO has already formed an opinion on the basis of the evidences filed in the course of the original assessment proceedings. By re-examining the same and drawing a different inference it would only mean that there is a change of opinion. This is not permissible for reopening. This view is supported by the decision of the Hon'ble Supreme Court in CIT v. Kelvinator of India Ltd. reported in 320 ITR 561. In the circumstances, we are of the view that ....
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....in a large number of decisions and the latest in the series being in the case of CIT v. Kelvinator of India Ltd. (320 ITR 561 (SC)) which has been relied upon by the learned Tribunal to quash the reassessment in the present case. 11. The relevant portion of the decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax v. Kelvinator of India Ltd. (320 ITR 561 (SC)) is extracted below for ready reference:- "On going through the changes, quoted above, made to Section 147 of the Act, we find that, prior to Direct Tax Laws (Amendment) Act, 1987, re-opening could be done under above two conditions and fulfilment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act [with effect from 1st April, 1989], they are given a go-by and only one condition has remained, viz., that where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to reopen the assessment. Therefore, post-1st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, S....