TaxTMI 
TaxTMI 
2015 (10) TMI 2809
X X X X Extracts X X X X
X X X X Extracts X X X X
....me were clubbed and heard together, therefore, we dispose of these appeals by way of consolidated order for the sake of convenience. 2. The grounds raised by the revenue in both the appeals are common, which are as under: "1. The CIT(A) is erred in law and on facts. 2. The CIT(A) is not correct in holding that reopening u/s 147 of the Act, is null and void. 3. The CIT(A) ought to have decided the case based on merits of the case. 3. To dispose of these appeals, we refer to the facts from AY 2005-06. Briefly the facts are, assessee company which is engaged in the business of manufacture and sale of cement, filed its return of income for the AY 2005-06 on 29/10/05 declaring total loss of Rs. 5,56,26,607. AO passed the assessmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Further, the assessee, vide letter dated 11-03-2011, requested for supply of the reasons for re-opening of the assessment. The reasons for re-opening of the assessment were communicated to the assessee vide letter dated 29-03-2011. Subsequently, notice u/s 143(2) dated 01-12-2011 was issued and served on the assessee. Assessee has objected to the reopening of assessment as the same was against the provisions of section 147 as the assessment was reopened after completion of four years from the relevant AY i.e. AY 2005-06. AO completed the assessment by making addition of Rs. 1,37,60,167 on account of depreciation claimed on goodwill. 5. Aggrieved by the order of AO, assessee has preferred appeal before the ld. CIT(A). 6. Before ld. CI....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year. Ld. AR submitted that AO has not found any fresh material for reopening of assessment but has only relied on the information, which was already available on record, and applied his mind for completing the assessment u/s 143(3) of the Act. 10. We have heard both the parties and perused the orders of revenue authorities as well as other materials on record. We observe that for AY 2005-06, AO has reopened the assessment after expiry of four years from the end of the relevant AY. On veri....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... end of the relevant AY. From the material available on record, we observe that the assessment proceedings were completed u/s 143(3) of the Act where AO has applied his mind and also examined the relevant records which were available in his possession to pass the relevant assessment order. From the records, we also observe that AO has considered the very same material to come to the conclusion that income has escaped assessment. This, in our opinion, is on change of opinion, which is not sustainable. For this proposition, we rely on the ratio laid down by the Hon'ble Supreme Court in the cases of CIT Vs. Kelivnator of India Ltd., and CIT Vs. Eicher Ltd., (supra), wherein after examining the scope and ambit of power conferred u/s 147 of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne the question or subject matter and form an opinion, would be contrary and opposed to normal human conduct. Such cases have to be examined individually. Some matters may require examination of the assessment order or queries raised by the Assessing Officer and answers given by the assessee but in others cases, a deeper scrutiny or examination may be necessary. The stand of the Revenue and the assessee would be relevant. Several aspects including papers filed and submitted with the return and during the original proceedings are relevant and material. Sometimes application of mind and formation of opinion can be ascertained and gathered even when no specific question or query in writing had been raised by the Assessing Officer. The aspects ....