The Tax Publishers2020 TaxPub(DT) 5007 (Del-Trib) : (2021) 188 ITD 0321


Section 147 Section 50 Section 148

Where in return of income assessee disclosed fully and truly all facts which were part of assessment order under section 143(3) and no new or tangible information came from investigation wing to AO, the reopening was based on change of opinion as such, notice issued under section 148 was invalid and also the reopening was not valid.

Reassessment - Change of opinion - Validity of notice under section 148 -

Details of assets and depreciation claimed thereon were mentioned in the return of income. Thus, all the facts regarding rental income, depreciation thereon and the long-term capital gains were properly declared in the returns of income and were mentioned in the computation of income and depreciation chart was attached with the tax audit report. No discrepancy was pointed out by the AO in the information filed by assessee in its return of income for all the assessment years since the property was acquired and which were part of the assessment record of the revenue. CIT(A) stated that in the depreciation chart, the value of said property was shown at Rs. 6,10,00,000 which was the purchase value of the said property and the same was reflected in the balance sheet. This showed that no depreciation at all was charged on the said property in the periods relevant to the assessment year 2006-07 to A. Yrs. 2009-10. He further observed that, all the said information was available and verified by the AO during the original assessment proceedings from his record. No new information was received by the department for reopening the assessment and reopening was done merely on the basis of change of opinion of the AO on same set of facts which was not permissible in the law. Held: It is a settled law that the assessment cannot be reopened on the basis of mere change of opinion on the same set of facts on record. The Tribunal agreed with the contention of the assessee that the assessment order cannot contain each and every fact verified by the AO. Which only was later on referred to by the AO to record reasons of escapement of income. Thus, the said facts were on the record of the AO and verified by him. Further, the CIT(A) also verified the said information as had been mentioned in its order. Even, the Tribunal verified the said information from the documents placed in the paper book and have come to a conclusion that no depreciation was ever claimed or allowed on the land of building under consideration. Undisputedly, the said property was held by assessee for more than three years as it was receiving the rent on the said property with effect from 1-5-2005 and no depreciation was claimed thereon. Thus, there was true and full disclosure of the facts and no new information came to the knowledge of the AO. On these facts and material already on record, the reopening of the assessment was invalid and the assessment so made on the basis of an invalid notice was correctly quashed by the CIT(A).

Distinguished:Multiscreen Media (P) Ltd. v. UOI (2010) 324 ITR 54 (Bom-HC) : 2010 TaxPub(DT) 1542 (Bom-HC), New Delhi Television Ltd. v. Dy. CIT, (2017) 84 136 (Del-HC) : 2017 TaxPub(DT) 2132 (Del-HC), Consolidated Photo & Finvest Ltd. v. Asstt. CIT, (2006) 151 Taxman 41 (Del) : 2006 TaxPub(DT) 1215 (Del-HC), Jayant Security & Finance Ltd. v. Asstt. CIT (2018) 91 181 (Guj-HC) : 2018 TaxPub(DT) 979 (Guj-HC), Multi Commodity Exchange of India Ltd. v. Dy. CIT (2018) 91 265 (Bom) : 2018 TaxPub(DT) 1226 (Bom-HC), Aradhna Estate (P) Ltd. v. Dy. CIT, (2018) 91 119 (Guj) : 2018 TaxPub(DT) 968 (Guj-HC), Nickunj Eximp Enterprises (P) Ltd. v. Asstt. CIT (2014) 49 10 (Bom), Siemens Information Systems Ltd. v. Asstt. CIT, (2012) 20 666 (Bom.) : 2012 TaxPub(DT) 1730 (Bom-HC), Sumeru Soft (P) Ltd. v. ITO, (2017) 82 5 (Chen -Trib.) : 2017 TaxPub(DT) 1419 (Chen-Trib).


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