The Commissioner Of Income Tax , Faridabad v. M/S Asahi Alpha Limited, Faridabad

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. ITA No. 251 of 2004 Date of decision: 6.10.2010 The Commissioner of Income Tax , Faridabad -----Appellant Vs. M/s Asahi Alpha Limited, Faridabad ----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOELHON’BLE MR. JUSTICE AJAY KUMAR MITTAL Present:-Ms. Urvashi Dhugga, Advocate for the appellant. Mr. Avneesh Jhingan, Advocate for the respondent. Adarsh Kumar Goel,J. 1.This appeal has been preferred under section 260A of theIncome Tax Act, 1961 (for short, ‘the Act’) against order dated31.12.2003 passed by the Income Tax Appellate Tribunal, Delhi in ITANo.24/Del/2001 for the assessment year 1989-90, proposing to raisefollowing substantial question of law:- “Whether on the facts and in the circumstances of thecase, the Hon’ble ITAT has erred in holding that theassessment in the given case has been reopened undersection 147 without jurisdiction even when theassessment was reopened after 1.4.1989 under theamended provisions of Section 148 and even when theAssessing Officer had every reason to believe thatincome chargeable to tax had escaped assessment dueto wrong allowance of deduction under section 35ABof the Act to the assessee?” 2. The Assessing Officer made assessment under section 143 (3) of the Act but later re-opened the same on the ground that deductionallowed to the assessee under section 35AB of the Act was notadmissible. 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 asunder:- “However, mere change of opinion on the part of theAssessing officer on the same set of facts consideredearlier by the while making the original assessmentwould not confer jurisdiction under section 147 as heldby the Delhi High Court in Jindal Photo Films Limited234 ITR 171. I have, therefore, no hesitation to upholdthe view taken by the CIT(A) that the assessment hasbeen reopened without jurisdiction and is, therefore,liable to be cancelled.” 3. The above view has been taken relying upon judgment ofDelhi High Court in Jindal Photo Films Limited v. DeputyCommissioner of Income Tax and another, (1998) 234 ITR 170. 4.We have heard learned counsel for the parties and perusedthe record. 5.Learned counsel for the assessee points out that the viewtaken by Delhi High Court in Jindal Photos Films Limited has beenapproved by the Hon’ble Supreme Court in CIT v. Kelvinator of IndiaLimited, (2010) 320 ITR 561. It has been held that mere change ofopinion cannot be a ground for re-assessment. In the present case, inthe 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 Actmay have been permissible if Explanation 2 (c) (iv) to Section 147 wasapplicable but in the present case, the said provision has not been andcannot be invoked as in the original assessment order itself, thededuction had been held to be applicable. 6.The view taken by the Tribunal, cannot, thus, be held to beerroneous. The question raised by the revenue has thus, to be decidedagainst it. 7.The appeal is dismissed. (Adarsh Kumar Goel) Judge October 6, 2010‘gs’ (Ajay Kumar Mittal) Judge