Dy. Commissioner of Income Tax 1(1), RAIPUR (CG) V. Shri Ismail Mohammed, RAIPUR (CG)

ITA 182/BIL/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1527 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 05-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K JAIN
• Keywords: Reopening of assessment; Unexplained cash credit; Tangible material; Difference of opinion; Tax effect; Retraction; Revised return; Change of opinion; Reassessment proceedings
• Section: 143(3); 142(1); 133A; 68; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI SHAMIM YAHYA , HONBLE ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY , HONBLE JUDICIAL MEMBER ITA NO. 182 / R PR /201 2 (ASST. YEAR : 200 6 - 0 7 ) DCIT - 1(1), RAIPUR. VS. SHRI ISMAIL MOHAMMED, MANGRAPARA, JAWAHAR NAGAR, RAIPUR (CG) . PAN NO. AISPM 8617 R (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI D.K. JAIN - DR . DATE OF HEARING : 1 8 / 04/2016 . DATE OF PRONOUNCEMENT : 21 / 04 /201 6 . O R D E R PER SHAMIM YAHYA , ACCOUNTANT MEMBER THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), RAIPUR , DATED 20 /0 7 /201 2 AND PERTAINS TO ASSESSMENT YEAR 2006 - 0 7 . 2. THE GROUND OF APPEAL READ S AS UNDER: - W HETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN QUASHING THE ORDER UNDER SEC. 143(3) R.W.S. 147 DATED 27/ 1 2/2011 PASSED BY THE ASSESSING OFFICER 3 . THE ASSESSEE IN THIS CASE HAS ALSO AGITATED THE ISSUE OF REOPENING BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS STATED THAT NOTICE 2 ITA NO. 182/RPR/2012 UNDER SEC. 148 OF THE ACT WAS ISSUED ON 18/3/2011 AND COPY OF THE REASONS RECORDED FOR INITIATING ACTION UNDER SEC. 147 OF THE ACT , WERE COMMUNICATE D. THE ASSESSING OFFICER HAS RELIED ON THE DECISION IN CIT V RAJESH JHAVERI STOCK BROKERS (P) LTD. (2007) 291 ITR 500 (SC) ; THAT NONE APPEARED ON BEHALF OF THE APPELLANT BECAUSE HE HAD NO PLAUSIBLE EXPLANATION FOR NOT OFFERING THE SURRENDERED SUM OF RS. 1 1,86,200/ - , IN THE RETUR N FILED ; THAT AGAIN A FRESH NOTICE UNDER SEC. 142(1) WAS ISSUED ON 16/11/2011 ASKING THE APPELLANT TO FILE REVISED RETURN; THAT VIDE HIS LETTER DATED 21/12/2011 THE APPELLANT FILED THE SAME RETURN; THAT NOTICE UNDER SEC. 143(2) WAS ISSUED AND SERVED TO THE ASSESSEE THROUGH HIS AR ON 23/12/2011 ; THAT ASSESSMENT WAS ORIGINALLY COMPLETED ON 23/10/2008 DETERMI NI NG ASSESSED INCOME AT RS. 1,34,65,950/ - ; THAT THE APPELLANT HAD NO PLAUSIBLE EXPLANATION FOR NOT OFFERING THE SURRENDERED SUM OF RS. 11,86,200/ - IN THE RETURN FILED. 4 . THE ASSESSEE AGITATED THE ISSUE OF REOPENING BEFORE THE LD. CIT(A) ALSO. THE LD. CIT(A) DECID ED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HO L DING AS UNDER: - 6. I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND SUBMISSIONS OF THE APPELLANT. I HAVE ALSO EXAMINED THE ORIGINAL ASSESSMENT ORDER U/S 143(3) AS ALSO THE FINDINGS RECORDED IN APPEAL NO. 0211/08 - 09 IN THE CASE OF THE APPELLANT HIMSELF. I FIND IT IMPERATIVE TO EXTRACT HEREUNDER THE FINDING OF FACT RECORDED BY THE A.O IN THE ASSESSMENT ORDER U/S 143(3) VIDE ORDER DATED 23.10.2008; 'DURING THE COURSE OF SURVEY OPERATION, EXCESS CASH OF RS.24,151/ - WAS FOUND AND EXCESS STOCK OF RS. 1,86,200/ - 3 ITA NO. 182/RPR/2012 WAS WORKED OUT. REGARDING THESE EXCESS CASH AND STOCK THE APPELLANT VOLUNTARILY SURRENDERED THIS AMOUNT FOR TAXATION PURPOSES. THESE SURRENDERED AMOUNTS IS DULY ACCOUNTED FOR IN THE PROF IT AND LOSS ACCOUNT OF THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, VIDE ORDER SHEET ENTRY DATED 21.05.2008, THE APPELLANT WAS REQUESTED TO SUBMIT THE ADDITION MADE BY THE PROPRIETOR IN HIS ACCOUNT WITH SUPPORTING PAPERS I.E. SOURCE OF AMOUNT ETC. BUT, EVEN AFTER SEVERAL O PPO RTUNITIES ALLOWED TO THE APPELLANT, THE APPELLANT HAS NOT EXPLAINED THE NATURE AND SOU RCES OF THIS AMOUNT NOR ANY REPLY ON THIS ISSUE WAS RECEIVED FROM THE APPELLANT AND ADDITION MADE BY THE APPELLANT DURING THE YEAR UNDER CONSIDERATION FOR RS. 14,00,000/ - REMAINS TO BE UNVERIFIABLE. THUS, THE SUM CREDITED FOR RS. 1 4,00,000/ - TREATED AS CASH CREDIT AND ADDED BACK TO THE APPELLANT INCOME U/S 68 OF THE INCOME TAX ACT, 1961.' 7. AT THIS JUNCTURE, I FIND IT RELEVANT TO EXTRACT HEREUNDER THE RELEVANT PORTION OF THE APPELLATE ORDER PASSED IN APPEAL NO. 0211/08 - 09: ' I HAVE GONE THROUGH THE ORDER OF THE A.O, SUBMISSIONS OF THE APPELLANT AND REMAND REPORT OF THE A.O. DURING THE YEAR UNDER CONSIDERATION THE APPELLANT HAS IN TRODUCED A SUM OF RS. 14,00,000/ - IN HIS CAPITAL ACCOUNT. IN ABSENCE OF SATISFACTORY EXPLANATION AS REGARDS TO ITS NATURE AND SOURCE, THE A. O TREATED IT AS UNEXPLAINED CASH CREDIT U/S 68 OF THE I. T. ACT, 1916. THE APPELLANT HAS STATED THAT HE HAS SOLD AG RICULTURAL LAND FOR CONSIDERATION OF RS.14,00,000/ - AND THE PROFIT ON SALE OF LAND WAS ALSO CREDITED IN HIS PERSONAL CAPITAL ACCOUNT THE PROFIT OF SALE OF LAND WAS DULY EXAMINED BY THE A.O BY VERIFYING SALE DEED WHICH WAS SUBMITTED DURING THE COURSE ASSESS MENT PROCEEDINGS BEFORE THE A.O ON 04.06.J008. THE PROFIT OF SALE OF AGRICULTURAL LAND HAS BEEN DULY ACCEPTED BY THE A.O AFTER DUE VERIFICATION. COPY OF BANK ACCOUNT WAS ALSO SUBMITTED BY THE APPELLANT, IN SUPPORT OF SALE PROCEEDS CREDITED.' 8. FROM THE PERUSAL OF EXTRACTS OF THE ORIGINAL ASSESSMENT ORDER AND FIRST APPELLATE ORDER, IT IS ABUNDANTLY CLEAR THAT THE A.O HAD, IN THE ORIGINAL ASSESSMENT PROCEEDINGS, ACCEPTED THAT THE SURRENDERED INCOME WAS OFFERED FOR TAXATION BY THE APPELLANT. NO EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE A.O TO CONCLUSIVELY PROVE THAT THE APPELLANT HAS DEBITED THE PURCHASES TO NULLIFY THE TAX EFFECT OF SURRENDERED INCOME. ON THE CONTRARY, THE APPELLANT HAS REFERRED TO THE AUDITED ACCOUNTS TO PROVE THAT BY CREDITING THE SU RRENDERED AMOUNT IN CAPITAL ACCOUNT, THE APPELLANT'S CAPITAL HAS INCREASED BY RS. 1 1,86,200/ - AND BY DEBITING STOCK ACCOUNT IN THE BALANCE SHEET, THE STOCK HAS INCREASED BY RS. 1 1,86,200/ - . UNDISPUT E DLY, 4 ITA NO. 182/RPR/2012 THE NET EFFECT OF MODUS OPERANDI ADOPTED BY THE APPE LLANT IS THE INCREASE IN TRADING RESULTS. I FIND FORCE IN THE SUBMISSIONS OF THE APPELLANT THAT THIS MATTER HAS ALSO BEEN POINTED OUT BY THE AUDITOR IN HIS AUDIT REPORT. I AM CONVINCED WITH THE SUBMISSION OF THE APPELLANT THAT THE THEN A.O WHO PASSED THE A SSESSMENT ORDER U/S 143(3) HAS ALSO VERIFIED THE ISSUE AND ACCEPTED IT. 9. AS REGARDS THE ISSUE OF AGRICULTURAL LAND, I FIND THAT THE AO HAD, IN THE REMAND R E PORT SUBMITTED DURING THE COURSE OF APPELLANT PROCEEDINGS IN APPEAL NO. 211/08 - 09, DULY VERIFIED AND ACCEPTED THE NATURE AND CHARACTER OF THE LAND SOLD BY THE APPELLANT TO BE AGRICULTURAL LAND WITHIN THE MEANING OF SECTION 2( 14)(III). 10. IT IS SEEN THAT THE A.O HAS NOT COME ACROSS ANY FRESH MATERIAL OR DOCUMENT TO TAKE A CONTRARY VIEW FROM THE VIEW TAKEN IN THE REMAND REPORT AND ORIGINAL ASSESSMENT ORDER. SO FAR AS APPELLANT IS CONCERNED, HE DID MAKE FULL AND TRUE DISCLOSURE IN THE AUDITED FINANCIAL STATEMENTS AND INCOME TAX RETURN. AS THE A.O HAS NOT COME ACROSS ANY NEW FACT, I AM OF THE CONSIDERED OPINION THAT IT IS A MERE CHANGE OF OPINION ON THE PART OF THE A.O ON SAME SET OF FACTS AND DOCUMENTS THAT WERE ALREADY CONSIDERED AND VERIFIED EITHER IN THE ORIGINAL ASSESSMENT PROCEEDINGS OR IN THE REMAND REPORT. IT IS SETTLED PRINCIPLE OF LAW THAT THE REASSESSMENT PROCEEDINGS U/S 147 CANNOT BE RESORTED TO BY THE A.O TO REVIEW HIS OWN ORDER OR GIVE EFFECT TO THE CHANGE IN OPINION. THE JUDICIAL DECISIONS RELIED UPON BY THE APPELLANT ARE PROVIDING STRENGTH TO THE CASE OF THE APPELLANT. ON THE CONTRARY, THE DECISIONS RELIED UPON BY THE A.O HAVE BEEN RENDER ED ON DIFFERENT SET OF FACTS. IN THE PRESENT CASE, THERE IS NOTHING ON RECORD TO INDICATE THAT THE INCOME HAD ESCAPED ASSESSMENT DUE TO OVERSIGHT OR INADVERTENCE OF THE A.0 IN THE ORIGINAL ASSESSMENT PROCEE DINGS OR THAT ANY MISTAKE HAD TAKEN PLACE. I FIND THAT BOTH THE ISSUES WERE DULY CONSIDERED, EXAMINED WITH REFERENCE TO THE RELEVANT MATERIAL AND DOCUMENTS, THE A.O HAD DULY APPLIED HIS MIND TO THE FACTS AND MATERIAL ON RECORD AND THEREAFTER, THE A.0 HAD A RRIVED AT A CONCLUSION IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND REMAND REPORT. THEREFORE, I AM CONVINCED THAT THE REASSESSMENT PROCEEDINGS ARE INVALID AND, HENCE, DESERVE TO BE QUASHED. AGAINST THE ABOVE ORDER, REVENUE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD L D . DR. NONE APPEARED ON BEHALF OF THE ASSESSEE, BUT WRITTEN SUBMISSIONS HAS BEEN FILED BY THE COUNSEL OF THE ASSESSEE. 5 ITA NO. 182/RPR/2012 APART FROM RELYING UPON THE VARIOUS CASE - LAWS , THE SUBMISSIONS OF THE ASSESSEE MAY GAINFULLY BE REFER R E D TO HEREIN UNDER: - THE APPELLANT HAS SUBMITTED THAT THE APPELLANT HAS FILED ORIGINAL RETURN ON 31/03/2007 VIDE ACK. NO. 12121100 SHOWING INCOME RETURNED AT R S. 14,46,460/ - AND AGRICULTURAL INCOME OF RS.28,400/ - ; THAT THE ACI T - L(L), RAIPUR HAS COMPLETED THE SCRUTINY ASSESSMENT ORDER U/S 143(3) ON 23.10.2008 AT ASSESSED INCOME OF RS. 1,34,65,950/ - ; THAT THE HON'BLE CIT(A) RAIPUR HAS GIVEN A HEAVY RELIEF TO THE APPELLANT AND THE APPEAL WAS PARTLY ALLOWED; THAT ONE OF THE QUERY RELATED TO ADDITION IN CAPITAL ACCOUNT OF THE APPELLANT; THAT IT WAS EXPLAINED THAT SUCH ADDITION WAS MADE OUT OF SALE PROCEED RECEIVED ON SALE OF AGRICULTURAL LAND SITUATED AT VILLAGE: BANARASI; THAT THE COPY OF SALE DEED WAS ALSO FILED BEFORE THE THEN A.O; THAT THE A.O AND HON'BLE CIT(A) HAS ALS O EXAMINED THE MATTER AND ACCEPTED THE APPELLANT'S SUBMISSION; THAT THE APPELLANT HAD SURRENDERED EXCESS STOCK AND CASH IN HAND DURING THE COURSE OF SURVEY U/S 133A IN THE BUSINESS PREMISES OF THE APPELLANT; THAT THE SAME WAS FULLY DISCLOSED IN THE BOOKS OF ACCOUNTS OF THE APPELLANT; THAT THE A.O WAS SATISFIED THAT THE APPELLANT HAS DISCLOSED ALL THE SURRENDERED INCOME IN HIS RETURN OF INCOME; THAT THERE WAS NO ESCAP EMENT OF INCOME ON ANY COUNT - IN THE IMPUGNED SCRUTINY ASSESSMENTS COMPLETED. THE APPELLANT HAS FURTHER SUBMITTED THAT BY CREDITING THE AMOUNT IN CAPITAL ACCOUNT THE APPELLANT'S CAPITAL HAS GONE INCREASED BY RS. 11,86,200/ - AND BY DEBITING STOCK ACCOUNT I N BALANCE SHEET IT IS CLEAR THAT THE STOCK HAS BEEN GONE INCREASED BY RS. 11,86,200/ - ; THAT THIS MATTER HAS ALSO BEEN POINTED OUT BY THE AUDITOR IN HIS AUDIT REPORT; THAT THE THEN A.O WHO PASSED THE ASSESSMENT ORDER U/S 143(3) HAS ALSO VERIFIED THE ISSUE A ND ACCEPTED IT; THAT AGAINST THE ABOVE IT IS TO BE SUBMITTED BEFORE YOUR HONOUR THE APPELLANT IS REGULARLY PERFORMING AGRICULTURE ACTIVITY IN THE ABOVE MENTIONED LAND AND DISCLOSED IN ITS RETURN OF INCOME YEAR TO YEAR WHICH HAS BEEN UNDISPUTEDLY ACCEPTED B Y YOUR DEPARTMENT; THE APPELLANT RELIED UPON FOLLOWING JUDICIAL PRONOUNCEMENTS SUBSTANTIATING THE APPELLANT'S ASSERTIONS CHALLENGING VALIDITY OF ACTION U/S 147: (I) CIT V. SIMON CARVES LTD. (1976) 105 ITR 212, 219 (SC); (II) VXL INDIA LIMITED V . ACIT (1995) 215 ITR 295, 297 (GUJ) (III) BIRLA VXL LTD V. ACIT (1996) 217 ITR 1, 3 - 4 (GUJ); (IV) JINDAL PHOTO FILMS LTD. V. DCIT (1998) 234 ITR 170, 177 (DEL); (V) CIT V. RAO THAKUR NARAYAN SINGH (1965) 56 ITR 234, 239 (SC); (VI) CIT V. KELVINATOR OF INDIA LTD. (2002) 256 ITR 1 (DELHI) (FB); 6 ITA NO. 182/RPR/2012 (VII) ACIT V. YASHODA DAIRY (P) LTD. (2006) 202 CTR 495 (MP); (VIII) ACIT V. CHAMPDANY INDUSTRIES LTD. (2005) 95 ITR 169 (KOL); (IX) VISHNU BOREWELL V. ITO (2002) 257 ITR 512 (ORI); (X) CIT V. GEORGE WILLIAMSON (ASSAM) LTD. (2002) 258 ITR 126 (GAU.); (XI) ANAND KUMAR SAHARIA V. CIT, (1998) 232 ITR 533, 539 (GAUH); (XII) EVERY READY INDUSTRIES INDIA LTD. V. JCIT (2000) 243 ITR 540(GAU.); (XIII) KANJI RAMCHOD V. CIT (1966) 61 ITR 339 (GUJ.); (XI V) CIT V. SHIV RATAN SONI (2005) 279 ITR 261 (RAJ.); THE APPELLANT FURTHER SUBMITTED THAT THE APPELLANT HAD MADE FULL DISCLOSURE OF ALL THE MATERIAL FACTS NECESSARY FOR ASSESSMENT; THAT THERE IS NO LAPSE ON THE PART OF THE APPELLANT, THE A.O WAS NOT JUS TIFIED IN REOPENING OF THE ASSESSMENT AND THE REOPENING OF THE ASSESSMENT WAS SOLELY BASED ON WILD PRESUMPTIONS OF THE A.O SINCE THE FACTS WERE VERIFIABLE FROM THE RECORDS AND ALSO ALREADY ACCEPTED BY THE EARLIER A.O. THE APPELLANT RELIED ON FOLLOWING JUDI CIAL PRONOUNCEMENTS: - (I) ACIT VS. REAL IMAGE MEDIA TECHNOLOGIES PVT. LTD. 116 TTJ 964; (II) INDIAN CARBON LTD. VS. LAC & ANR. 200 ITR 759; (III) DCIT VS. INDIA CARBON LIMITED 1 SOT 372; 6 . UPON HEARING BOTH THE COUNSEL AND PERUSING THE RECORD, WE FIND THAT THE PURCHASE S AS WELL AS CLOSING STOCK WERE DULY AVAILABLE IN THE ACCOUNTS , DULY AUDITED , BEFORE THE ASSESSING OFFICER AT THE TIME OF SCRUTINY ASSESSMENT. AS NOTED BY THE LD. CIT(A), THE ISSUE OF CREDIT OF RS. 14 ,00,000/ - WAS RELATING TO THE SALE OF AGRICULTURAL LAND, THE SALE DEEDS WERE EXAMINED BY THE ASSESSING OFFICER. THE PROFIT ON SALE OF AGRICULTURAL LAND HAS BEEN DULY ACCEPTED BY THE ASSESSING OFFICER AFTER VERIFICATION. ON THE ISSUE OF ADDITION OF RS. 11,86,200/ - , WE MAY GAINFULLY REFER TO THE FOLLOWING CONCLUSION OF THE ASSESSING OFFICER. IN THE CASE OF ASSESSEE, AS ALREADY STATED, BY CRED I TING THE SURRENDERED SUM IN P & L ACCOUNT WITH CORRESPONDING DEBIT IN THE TRADING ACCOUNT, THE INCOME SURRENDERED WAS NULLIF IED AND SINCE 7 ITA NO. 182/RPR/2012 THE SAME WAS NOT OFFERED FOR TAXATION IN THE RETURN FILED, IT IN OTHER WORDS IMPLIES RETRACTION. HOWEVER, WHILE COMPLETING THE ORIGINAL ASSESSMENT, IT REMAINED TO BE CONSIDERED FOR ASSESSMENT. THE ASSESSEE HAD NO PLAUSIBLE EXPLANATION FOR NOT OFFERING THE SURRENDERED SUM OF RS. 11,86,200/ - , IN THE RETURN FILED. THIS SUM OF RS. 11,86,200/ - IS HEREBY ADDED TO THE TOTAL INCOME RESULTING IN ENHANCEMENT OF THE ASSESSED INCOME BY RS. 11,86,200/ - . 7 . A RE A DING OF THE ASSESSMENT ORDER, CLEARLY REVEALS THAT NO TANGIBLE MATERIAL CAME INTO POSSESSION OF THE ASSESSING OFFICER , SUBSEQUENT TO THE ASSESSMENT , WHICH COULD SHOW THAT THE ASSESSEE HAD MADE A BOGUS ENTRY OF PURCHASE OF RS. 11,86,200/ - WHEN THE AMOUNT OF RS. 11,86,200/ - , WAS DULY SHOWN AS PURCHASES AND THE PURCHASES WERE NOT ADVERSELY COMMENTED IN THE ORDER UNDER SEC. 143(3) OF THE ACT. THIS OPINION OF THE ASSESSING OFFICER CAN ONLY TO BE CO NSIDERED A CHANGE OF OPINION ON THE SAME SET OF FACTS WHICH IS NOT PERMISSI B LE IN LAW. SIMILARLY, IN THE CASE OF SALE OF AGRICULTURAL LAND AS NOTED BY THE LD. CIT(A), THE ISSUE WAS EXAMINED BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT. NOW , THE AS SESSING OFFICER HAS FOUND FROM THE SAME DOCUMENT AS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT NO AGRICULTURAL OPERATION S WERE CARRIED OUT ON THE SAID LAND. WE FIND , IT IS ST R ANGE THAT ON THE BASIS OF SAME DOCUMENTS, THE ASSESSING OFFICER HAS COMPLETED THE ORIGINAL ASSESSMENT WITHOUT DRAWING ANY ADVERSE INFERENCE. THIS NEW LINE OF THOUGHT BY THE ASSESSING OFFICER IS CLEARLY CHANGE OF OPINION . 8 . WE ALSO NOTED THAT THE TAX EFFECT IN TH IS CASE IS BELOW THE LIMIT FIXED FOR FILLING APPEAL BEFORE THE ITAT , BUT WE HAVE BEEN TOLD THAT THE REOPENING IN THIS CASE HAS TAKEN PLACE DUE TO AUDIT OBJE CT IONS , AND SUCH 8 ITA NO. 182/RPR/2012 CASES, FALL UNDER THE EXCEPTIONS CARVED OUT IN THE CBDT CIRCULAR FOR FILING APPEALS BEFORE THE TRIBUNAL . THIS MAKES IT ABUNDANTLY CLEAR THAT FROM THE SAME DOCUMENTS, WHICH WERE AVAILABLE ON RECORD, AUDIT PART Y WAS OF THE OPINION THAT THE ASSESSING OFFICER HAS COMMITTED SOME MISTAKES , WHICH HAS LED TO REOPENING . I N OUR CONSIDERED OPINION, IF THE ASSESSING OFFICER FORMS A MISTAKEN OPINION OR COMMITS A MISTAKE AFTER PROPERLY EXAMI NI NG THE RECORDS, THE REMEDY LIES IN THE PROVISIONS OF SEC. 263 OF THE ACT. REOPENING THE CASE UNDER SEC. 147 CLEARLY COMES UNDER THE AMBIT OF CHANGE OF OP INION, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE , WHICH IS NOT SUSTAINABLE IN LAW . THIS PROPOSITION IS DULY SUPPORTED BY THE HON'BLE APEX COURT DECISION IN THE CASE OF CIT V. FORAMER FRANCE [264 ITR 566 ] , IN WHICH CASE, IT WAS HELD THAT EVEN AFTER THE AMENDMENT IN THE ACT, CHANGE OF OPINION IS NOT PERMISSIBLE FOR REOPENING OF ASSESSMENT. ACCORDINGLY, WE CONFIRM THE ORDER OF THE LD.CIT(A). 9. IN THE RESULT, THIS APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 /04/2016 . SD/ - SD/ - ( PARTHA SARATHI CHAUDHURY ) ( SHAMIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 21 ST APRIL , 201 6 . VR/ - 9 ITA NO. 182/RPR/2012 10 ITA NO. 182/RPR/2012 COPY TO: 1 . THE ASSESS E E. 2 . THE REVENUE. 3 . THE CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., RAIPUR.