The Commissioner of Income Tax vs Asahi Alpha Limited

Adarsh Kumar Goel, J.—This appeal has been preferred u/s 260A of the Income Tax Act, 1961 (for short, ''the Act'') against order dated 31.12.2003 passed by the Income Tax Appellate Tribunal, Delhi in ITA No. 24/Del/2001 for the assessment year 1989-90, proposing to raise following substantial question of law:

Whether on the facts and in the circumstances of the case, the Hon''ble ITAT has erred in holding that the assessment in the given case has been reopened u/s 147 without jurisdiction even when the assessment was reopened after 1.4.1989 under the amended provisions of Section 148 and even when the Assessing Officer had every reason to believe that income chargeable to tax had escaped assessment due to wrong allowance of deduction u/s 35AB of the Act to the assessee?

The Assessing Officer made assessment u/s 143(3) of the Act but later re-opened the same on the ground that deduction allowed to the assessee u/s 35AB of the Act was not admissible. The addition made after re-assessment was upset by CIT (A) but the Tribunal set aside the same on the ground that re-assessment itself was without jurisdiction. Finding recorded is as under:

However, mere change of opinion on the part of the Assessing officer on the same set of facts considered earlier by the while making the original assessment would not confer jurisdiction u/s 147 as held by the Delhi High Court in Jindal Photo Films Limited 234 ITR 171. I have, therefore, no hesitation to uphold the view taken by the CIT(A) that the assessment has been reopened without jurisdiction and is, therefore, liable to be cancelled.

The above view has been taken relying upon judgment of Delhi High Court in Jindal Photo Films Ltd. Vs. The Deputy Commissioner of Income Tax, .

We have heard Learned Counsel for the parties and perused the record.

Learned Counsel for the assessee points out that the view taken by Delhi High Court in Jindal Photos Films Limited has been approved by the Hon''ble Supreme Court in Commissioner of Income Tax, Delhi Vs. Kelvinator of India Limited, . It has been held that mere change of opinion cannot be a ground for re-assessment. In the present case, in the original order of assessment, the issue was considered and deduction was allowed. Re-opening of the assessment on the issue was, thus, on mere change of opinion. Recourse to Section 147 of the Act may have been permissible if Explanation 2 (c) (iv) to Section 147 was applicable but in the present case, the said provision has not been and cannot be invoked as in the original assessment order itself, the deduction had been held to be applicable.

The view taken by the Tribunal, cannot, thus, be held to be erroneous. The question raised by the revenue has thus, to be decided against it.

The appeal is dismissed.