2016 (5) TMI 1522

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....icer. The assessee also raised the ground challenging the order of the Ld. CIT(A) sustaining the disallowance towards repairs and maintains expenses incurred by the assessee. 3. With regard to reopening of the assessment, the Ld. Counsel for the assessee submits that the assessee filed return on 31.10.2002 declaring income of Rs. 15,05,790/- and the assessment was completed u/s. 143(3) on 10.1.2005 determining income at Rs. 16,41,480/-. He submits that later the assessment was reopened by issue of notice u/s. 148 and completed the reassessment on 27.9.2007 u/s. 143(3) r.w. Sec. 147 de termining the income of the assessee at Rs. 26,11,680/-. The Ld. Counsel for the assessee submits that in the reassessment, the Assessing Officer disallowe....

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....fore the Ld. CIT(A), we are of the view that this issue is purely a legal issue and assessee is permitted to raise such ground even before the Tribunal, when there is no need to go into examining fresh facts in view of the decision of the Hon'ble Supreme Court in the case of National Thermal Power Corpn. Ltd Vs CIT (229 ITR 383). 6. The reasons for reopening of the assessment are as under: "Dated : 28.3.2007 In this case, the return of income was filed on 31.10.2002 declaring total income at Rs. 15,05,790/-. The case was selected for scrutiny. The assessment was completed u/s. 143(3) of the Act on 10.1.2005 on total income of Rs. 16,41,680/- and book profit of Rs. 13,88,488/-. On going through the records, it i....

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....as to believe that the income of the assessee has escaped assessment. It is only from the records the Assessing Officer came to the conclusion that the expenses are not allowable and therefore there is escapement of income. In our considered view, this is only a mere change of opinion of the Assessing Officer to reopen the assessment based on the materials already available on record which it is not permissible under law. The Hon'ble Bombay High Court in the case of Rallis India Ltd (supra) considering the decision of Hon'ble Supreme Court in the case of CIT Vs Kelvinator of India (supra) held as under:  "We are conscious of the circumstance that in the present case the reopening of assessment is sought to be effected within a....