Pramod Paliwal, Khanwa V. ACIT Khanwa, Khanwa

ITA 271/Ind/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7140 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-10-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 28-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: ARPIT GAUR CAS
• Keywords: Depreciation; Search and seizure; Tangible material; Difference of opinion; Assessment record; Reason to believe; Change of opinion; Reassessment proceedings; TDS
• Section: 143(3); 142(1); 195; 201; 143(2); 208; 192; 147; 148; 139

Judgement Text

PRAMOD PALIWAL ITA NO.271/IND/2018 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO. 271/IND/2018 ASSESSMENT YEAR 2009-10 REVENUE BY SHRI K. G . GOYAL SR.DR ASSESSEE BY S/ S HRI ANIL KAMAL GARG & ARPIT GAUR, CAS DATE OF HEARING 1 0 . 1 0 . 201 9 DATE OF PRONOUNCEMENT 17 . 10. 201 9 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE O F ASSESSEE PERTAINING TO ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)- III (IN SHORT LD.CIT(A)], INDORE DATED 14.12.2017 WHICH IS ARIS ING OUT OF THE ORDER U/S 147 R.W.S. 143(3) OF THE INCOME TAX ACT 1 961(IN SHORT THE ACT) DATED 28.12.2016 FRAMED BY ACIT,KHANDWA. SHRI PRA MOD PALIWAL, PROP. M/S. PRAGATI CONSTRUCTION, RAMKISHANGANJ, KHANDWA (M.P) VS. ACIT, KHANDWA ( APPELLANT ) (RESPONDENT ) PAN ADAPP8012A PRAMOD PALIWAL ITA NO.271/IND/2018 2 2. BRIEF FACTS AS CULLED OUT FROM THE RECORDS ARE T HAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF CIVIL C ONTRACTS UNDER THE SOLE PROPRIETORSHIP CONCERN M/S. PRAGATI CONSTRUCTI ONS. RETURN OF INCOME WAS E-FILED ON 29.09.2009 SHOWING NET INCOME OF RS.19,40,040/-. CASE SELECTED FOR SCRUTINY THROUGH CASS AND STATUTORY NOTICES U/S 143(2) AND 142(1) WERE ISSUED AND ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 1 8.12.2011 ON TOTAL INCOME OF RS. 25,61,110/-. HOWEVER LATER ON WHEN THE LD. A.O FOUND MISMATCH OF GROSS RECEIPT AS PER TDS CERTIFIC ATES CLAIMED IN THE RETURN OF INCOME VIS--VIS GROSS RECEIPT SHOWN IN THE PROFIT & LOSS ACCOUNT, THE ALLEGED DIFFERENCE OF RS.92,05,9 81/- WAS CONSIDERED TO BE AN INCOME ESCAPED FROM THE ASSESSM ENT. NOTICES U/S 148 OF THE ACT WERE ISSUED ON 21.3.2016 FOR CAR RYING OUT RE- ASSESSMENT PROCEEDINGS U/S 147 OF THE ACT. ASSESSE E CHALLENGED THE RE-ASSESSMENT PROCEEDINGS AND DID NOT ATTEND O N VARIOUS DATES OF HEARING WHICH LEFT NO OPTION TO LD. A.O EXCEPT T O ISSUE AN EX- PARTE ORDER FOR WHICH A SHOW CAUSE NOTICE WAS ISSUE D AND IN REPLY ASSESSEE ATTENDED THROUGH ITS AUTHORIZED REPRESENTA TIVE SUBMITTING THAT THE ALLEGED AMOUNT WAS DIFFERENCE RECEIVED DU RING THE YEAR WHICH HAS BEEN SHOWN AS REVENUE IN THE SUBSEQUENT Y EAR WHEN THE PRAMOD PALIWAL ITA NO.271/IND/2018 3 WORK WAS PERFORMED. LD. A.O WAS NOT SATISFIED AND HE COMPLETED THE ASSESSMENTS AFTER MAKING ADDITION FOR UNDISCLOS ED RECEIPT OF RS. 92,05,981/- AND ASSESSED THE INCOME AT RS.1,17,67, 091/-. 3. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE LD. C IT(A) AND COULD NOT SUCCEED ON IN ALL THE GROUNDS. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L RAISING FOLLOWING GROUNDS OF APPEAL. LA). THAT, THE LEARNED CIT(A) GROSSLY ERRED, BOTH ON FACTS AND IN LAW, IN UPHOLDING THE VALIDITY OF THE REASSESSMENT FRAMED B Y THE LEARNED AO UNDER S.147 R.W.S. 143(3) OF THE ACT WITHOUT CONSID ERING AND APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN PART ICULAR, WITHOUT CONSIDERING THE MATERIAL FACT THAT THE LEARNED AO W AS NOT HAVING ANY COGENT MATERIAL TO FORM BELIEF THAT ANY INCOME OF T HE APPELLANT CHARGEABLE TO TAX FOR ASSESSMENT YEAR UNDER CONSIDERATION HAS GOT ESCAPED. 1 B). THAT, THE LEARNED CIT(A) ALSO GROSSLY ERRED I N UPHOLDING THE VALIDITY OF THE ASSESSMENT PROCEEDINGS UNDER S.147 R.W.S. 143(3 ) OF THE ACT WITHOUT CONSIDERING THE MATERIAL FACT THAT IN THE INSTANT C ASE, THE ORIGINAL ASSESSMENT WAS DULY FRAMED UNDER S.143(3) OF THE AC T AND DURING THE COURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS, THER E WAS NO FAILURE ON THE PART OF THE APPELLANT TO DISCLOSE FULLY AND TRULY A LL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT. 2. THAT, WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED C IT(A) GROSSLY ERRED, BOTH ON FACTS AND IN LAW, IN CONFIRMING THE ADDITIO N OF RS.92,05,981/- MADE BY THE AO IN THE APPELLANT'S INCOME ON ACCOUNT OF A LLEGED DIFFERENCE IN PRAMOD PALIWAL ITA NO.271/IND/2018 4 CONTRACT RECEIPTS AS SHOWN IN THE BOOKS OF ACCOUNT OF THE APPELLANT AND THAT SHOWN IN THE VARIOUS TDS CERTIFICATES ISSUED I N FAVOUR OF THE APPELLANT BY INVOKING PROVISIONS OF S.199 OF THE AC T WITHOUT PROPERLY APPRECIATING THE PROVISIONS OF S.199 OF THE ACT AND AS ALSO, WITHOUT REJECTING THE BOOKS OF ACCOUNT MAINTAINED BY THE AP PELLANT. THAT, THE APPELLANT FURTHER CRAVES LEAVE TO ADD, AL TER OR AMEND THE FOREGOING GROUND OF APPEAL AS AND WHEN CONSIDERED N ECESSARY. 5. GROUND NO. 1 (A) & (B) CHALLENGES THE VALIDITY O F THE ASSESSMENT PROCEEDINGS U/S 147 R.W.S. 143(3) OF THE ACT. LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE WRITTEN S UBMISSIONS SUBMITTED THAT THE ASSESSEES CASE HAS BEEN RE-OPEN ED AFTER 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THER E WAS NO FAILURE ON THE PART OF THE ASSESSEE TO FURNISH THE DETAILS AND NO MATERIAL EVIDENCE HAS BEEN BROUGHT ON RECORD WHICH WAS NOT B EFORE THE LD. A.O DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT. IT IS THUS A MERE CHANGE OF OPINION AND SAID RE-OPENING IS BAD IN LAW AND THE PROCEEDINGS ARE LIABLE TO BE QUASHED . LD. COUNSEL FOR THE ASSESSEE FURTHER REFERRED TO THE FOLLOWING WRITTEN SUBMISSIONS; 1.01 THAT, THE LEARNED AO INVOKED THE PROVISIONS OF S.148 OF THE ACT IN THE APPELLANT'S CASE ON A GROUND THAT THERE WAS A D IFFERENCE OF RS.92,05,981/- IN THE CONTRACT RECEIPTS SHOWN BY THE APPELLANT IN PRAMOD PALIWAL ITA NO.271/IND/2018 5 HIS BOOKS OF ACCOUNT AND THAT APPEARING IN TDS CERT IFICATES. 1.02 THAT, THE LEARNED AO HAS RECORDED HIS REASONS FOR REOPENING THE CASE OF THE APPELLANT WHICH HAVE BEEN GIVEN BY HIM AT PAGE NO. 1 & 2 OF THE IMPUGNED ASSESSMENT ORDER. IN THESE REASON S, THE LEARNED AO HAS MADE THE ASSESSMENT RECORD FOR THE A . Y. 2009-10 AS THE BASIS FOR INVOKING THE PROVISIONS OF S.14 7 OF THE ACT. 2.01 YOUR HONOURS, IT IS A SETTLED LAW THAT IN A CA SE WHERE FOR ANY ASSESSMENT YEAR, ORIGINAL ASSESSMENT WAS COMPLETED UNDER S.143(3) OF THE ACT AND SUCH ASSESSMENT IS SOUGHT T O BE REOPENED AFTER EXPIRY OF A PERIOD OF FOUR YEARS, THEN, BY WA Y OF ISSUANCE OF A NOTICE UNDER S.148, IT IS IMPERATIVE THAT THERE MUS T BE A CLEAR FINDING BY THE AO IN THE NOTICE ITSELF THAT DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, THERE WAS A FAILUR E ON THE PART OF THE ASSESSEE TO MAKE A FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS FOR ITS ASSESSMENT. 2.02 APPARENTLY, IN THE NOTICE UNDER S.148 SO ISSUE D BY THE AO [KINDLY REFER PB PAGE NO. 37], SUCH ASSERTION IS LACKING AND THEREFORE, THE NOTICE SO ISSUED CANNOT BE SAID TO BE A VALID NOTIC E IN THE EYES OF THE LAW. IT IS SUBMITTED THAT IN VIEW OF SUCH FACT, THE ENTIRE REASSESSMENT PROCEEDINGS DESERVE TO BE QUASHED. FOR SUCH PROPOSITION, RELIANCE IS PLACED ON THE FOLLOWING JU DICIAL PRONOUNCEMENTS : I) DULI CHAND SINGHANIA VS. ACIT (2004) 269 ITR 192 (PHHC) II) SWAROVSKI INDIA LIMITED V. DEPUTY CIT' [2014} 368 ITR 601 (DELHI) III) CITVS. ITW INDIA LTD. (2015) 377 ITR 195 (P&H) PRAMOD PALIWAL ITA NO.271/IND/2018 6 IV) STATE BANK OF PATIALA VS. CIT & ANR. (2015) 375 ITR 109 (P&H) V) HCL TECHNOLOGIES LTD. VS. DCIT (2015) 93 CCH 146 (DEI HC) VI) GLOBAL SIGNAL CABLES (INDIA) PVT. LTD. VS. DCI T (2014) 368 ITR 609 (DEL.) VII) GREAT EASTERN ENERGY CORPORATION LTD VS. DCIT (2014) 89 CCH 208 (DEI HC) 3.00 YOUR HONOURS, WITHOUT PREJUDICE TO THE ABOVE, IT IS SUBMITTED THAT THE LEARNED AO, BY MAKING REFERENCE OF THE ASS ESSMENT RECORD OF THE APPELLANT FOR THE RELEVANT ASSESSMENT YEAR A ND PARTICULARLY, BY MAKING A REFERENCE OF THE TDS DEDUCTED ON BEHALF OF THE APPELLANT, HAD ATTEMPTED TO REVIEW AN ISSUE ALREADY TAKEN INTO CONSIDERATION IN THE ASSESSMENT ORDER PASSED FOR TH E RELEVANT ASSESSMENT YEAR WHICH IS NOT PERMISSIBLE IN THE LAW . IT IS SUBMITTED THAT THE TDS CERTIFICATES AND THE INFORMA TION REGARDING THE TDS OF THE APPELLANT, WHICH BECAME THE BASIS FO R REOPENING OF THE ASSESSMENT IN THE INSTANT CASE, WERE VERY WELL AVAILABLE ON THE RECORD OF THE AO FRAMING THE ORIGINAL ASSESSMENT AN D THEREFORE, BY NO STRETCH OF IMAGINATION, IT CAN BE INFERRED THAT THERE WAS ANY FAILURE ON THE PART OF THE APPELLANT TO MAKE A FULL AND TRUE DISCLOSURE OF ALL NECESSARY FACTS FOR MAKING THE AS SESSMENT AS CONTEMPLATED UNDER THE FIRST PROVISO TO SECTION 147 OF THE ACT. IT IS A SETTLED LAW THAT MERELY FOR THE REASON OF CHANGE OF OPINION, A NOTICE UNDER S.148 CANNOT BE ISSUED. 3.01 RELIANCE IS PLACED ON THE FOLLOWING JUDICIAL P RONOUNCEMENTS: I) CIT VS. KELVINATOR OF INDIA LTD. (2010) 320 ITR 561 (SC) II) SUN PHARMACEUTICAL INDUSTRIES LTD. (2016) 95 CCH 15 (DEI PRAMOD PALIWAL ITA NO.271/IND/2018 7 HC) III) DIRECT INFORMATION (P) LTD. VS. ITA (2012) 349 ITR 150 (MUMHC) IV) ARVIND MILLS LTD. VS. DCIT (2000) 242 ITR 173 (GUJHC) V) DELL INDIA (P) LTD. VS. JCIT (2015) 127 DTR 291 (KAR.) VI) CITVS. HEWLETT PACKARD GLOBALSOFT PVT. LTD. (2 016) 380 ITR 386 (KAR.) VII) CITVS. INDIAN RARE EARTHS LTD. (2015) 374 ITR 105 (BOM.) VIII) ASTEROIDS TRADING & INVESTMENTS (P) LTD. VS. DCIT (2009) 308ITR 190 (BORN.) IX) CITVS. USHA INTERNATIONAL LTD. (2012) 348 ITR 485 (DEL.) X) PVP VENTURES LTD. VS. ACIT (2015) 94 CCH 147 (CHEN HC) XI) PATEL PLASTICS CORPORATION VS. ACIT-CENTRAL-24 , MUMBAI 2014 (7) TMI 953 (ITAT MUM.) XII) M/S. ASIANET STAR COMMUNICATIONS PVT. LTD. VS . ACFT, CHENNAI 2019 (6) TMI356 (MAD.HC) XIII) CIT VS. M/S. T.C.C. INFOTECH LTD. 2018 (5) TMI853 (CAI.HC) XIV) M/S. CAPRI GLOBAL ADVISORY SERVICES PVT. LTD. VS. DCIT, MUMBAI 2019 (4) TMF 777 (FTAT MUM.) XV) DCIT VS. ICICI BANK LTD. 2019 (7) TMI531 (ITAT MUM.) XVI) NARENDRA MANPURIA VS. DCIT, KOLKATA 2018 (6) TMI292 (ITAT KOL.) IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND VARIOUS JUDICIAL PRONOUNCEMENTS, IT IS SUBMITTED THAT THE I NVOCATION OF THE PROVISIONS OF S.148 IN THE APPELLANT'S CASE IS ILLE GAL AND THE SAME DESERVES TO BE KNOCKED DOWN ON THIS LEGAL COUNT ALO NE. PRAMOD PALIWAL ITA NO.271/IND/2018 8 6. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE VEHEM ENTLY ARGUED AND SUPPORTING THE ORDER OF LD. CIT(A). 7. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. ASSESSEE HAS CHALLENGED THE VALI DITY OF RE- ASSESSMENT PROCEEDINGS WHICH OS INITIATED BY ISSUAN CE OF NOTICE U/S 148 OF THE ACT AFTER EXPIRY OF 4 YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR. PROVISIONS OF SECTION 147 OF THE ACT READ AS FOLLOWS; 147. IF THE ASSESSING OFFICER [HAS REASON TO BELIEVE] THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY AS SESSMENT YEAR, HE MAY, SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 1 53, ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SU BSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION, OR RE COMPUTE THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE, AS T HE CASE MAY BE, FOR THE ASSESSMENT YEAR CONCERNED (HEREAFTER IN THIS SECTIO N AND IN SECTIONS 148 TO 153 REFERRED TO AS THE RELEVANT ASSESSMENT YEAR) : PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB- SECTIO N (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSE SSMENT YEAR, NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHAR GEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REAS ON OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SEC TION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTIO N 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. XXXXXXX 8. FIRST PROVISO OF SECTION 147 OF THE ACT CONTEMPL ATES THAT THE ASSESSING OFFICER CAN INITIATE THE REOPENING OF ASS ESSMENT AFTER PRAMOD PALIWAL ITA NO.271/IND/2018 9 EXPIRY OF 4 YEARS FROM THE END OF THE RELEVANT ASSE SSMENT YEAR IN CASE ANY INCOME CHARGEABLE TO TAX HAS ESCAPED THE A SSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON TH E PART OF THE ASSESSEE TO MAKE THE RETURN U/S 139 OR IN RESPONSE TO THE N OTICE ISSUED U/S 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT, FOR THE ASSESSMENT YEAR. 9. SO THE LD. A.O NEEDS TO FULFILL THIS CONDITION B EFORE PROCEEDING TO INITIATE THE REASSESSMENT PROCEEDINGS. IN THE I NSTANT CASE THE REASON FOR REOPENING OF THE ASSESSMENT IS THAT THER E IS A MISMATCH OF THE GROSS RECEIPTS SHOWN BY THE ASSESSEE IN THE AUDITED PROFIT & LOSS ACCOUNT AS AGAINST THE GROSS RECEIPTS APPEARIN G IN FORM 26AS WHICH GIVES DETAILS OF TAX DEDUCTED AT SOURCE. WE OBSERVE THAT THE ASSESSEE HAS FILED THE DETAILS OF TAX DEDUCTED AT S OURCE ALONG WITH COMPUTATION OF INCOME WHILE FILING THE RETURN OF IN COME. WHEN THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AUDITED F INANCIAL STATEMENTS WERE PROVIDED. LD. A.O CATEGORICALLY OB SERVED IN THE ASSESSMENT ORDER U/S 143(3) OF THE ACT ABOUT THE DE TAILS FURNISHED BY THE ASSESSEE. SO THE DETAILS PERTAINING TO TAX D EDUCTED AT SOURCE, PRAMOD PALIWAL ITA NO.271/IND/2018 10 GROSS RECEIPTS AS PER FORM 26AS AND GROSS RECEIPTS APPEARING IN THE PROFIT & LOSS ACCOUNT WERE VERY MUCH BEFORE THE LD. A.O DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT. THERE IS NO MENTION ABOUT ANY OTHER EVIDENCE OR INFORMATION WHICH THE ASSESSEE HAS NOT DISCLOSED DURING THE COURSE OF ASS ESSMENT PROCEEDINGS U/S 143(3) OF THE ACT OR HAS NOT FURNIS HED THE DETAILS FULLY AND TRULY IN THE INCOME TAX RETURN. IT CAN B E SAFELY CONCLUDED THAT THERE WAS NO FAILURE ON THE PART OF THE ASSESS EE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSE SSMENT FOR THAT ASSESSMENT YEAR. SITUATION MAY HAVE BEEN FAVOURING TO THE REVENUE IF THE NOTICE U/S 148 OF THE ACT HAD BEEN ISSUED BE FORE THE EXPIRY OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEA R WHICH IS NOT THE CASE BEFORE US. 10. HON'BLE SUPREME COURT OF INDIA IN THE CASE OF C IT VS. KELVINATOR OF INDIA LTD (SUPRA) HELD THAT THE ESCAPEMENT OF INCOME BY ITSELF IS NOT SUFFICIENT FOR REOPENING ASSESSMEN T AFTER EXPIRY OF 4 YEARS UNLESS AND UNTIL THERE IS FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE MATERIAL FACTS NEC ESSARY FOR ASSESSMENT . HON'BLE APEX COURT IN THE CASE OF CIT V/S KELVI NATOR PRAMOD PALIWAL ITA NO.271/IND/2018 11 OF INDIA LTD (SUPRA) FURTHER OBSERVED THAT POST 1.4.1989 POWER TO REOPEN IS MUCH WIDER. HOWEVER, ONE NEEDS TO GIVE A SCHEMATIC INTERPRETATION TO THE WORDS REASON TO BELIEVE FA ILING WHICH, WE ARE AFRAID SECTION 147 WOULD GIVE ARBITRARY POWERS TO THE ASSESSING OFFICER TO RE-OPEN ASSESSMENTS ON THE BASIS OF MER E CHANGE OF OPINION, WHICH CANNOT PER SE BE A REASON TO RE-OPE N . WE MUST ALSO KEEP IN MIND THE CONCEPTUAL DIFFERENCE BETWEEN POWE R TO REVIEW AND POWER TO RE-ASSESS. THE ASSESSING OFFICER HAS NO P OWER TO REVIEW; HE HAS THE POWER TO RE-ASSESS. BUT RE-ASSESSMENT HA S TO BE BASED ON FULFILLMENT OF CERTAIN PRE-CONDITION AND IF THE CON CEPT OF CHANGE OF OPINION IS REMOVED, AS CONTENDED ON BEHALF OF THE DEPARTMENT, THEN, IN THE GARB OF RE-OPENING THE ASSESSMENT, REVIEW WO ULD TAKE PLACE . ONE MUST TREAT THE CONCEPT OF CHANGE OF OPINION AS AN IN-BUILT TEST TO CHECK ABUSE OF POWER BY THE ASSESSING OFFICER. HENCE AFTER 1.4.1989 THE ASSESSING OFFICER HAS POWER TO REOPEN PROVIDED THERE IS TANGIBLE MATERIAL TO COME TO THE CONCLUSION THAT THERE IS ESCAPEMENT OF INCOME FROM ASSESSMENT. REASONS MUST HAVE A LIVE LINK WITH THE FORMATION OF THE BELIEF. PRAMOD PALIWAL ITA NO.271/IND/2018 12 11. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENT AND I N THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE WHEREIN THE REO PENING AFTER 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IS NOT BASED ON ANY TANGIBLE MATERIAL EVIDENCE OR FACT NOT DISCLOSE D BY THE ASSESSEE IN THE INCOME TAX RETURN FILED BY IT OR INFORMATION NOT PROVIDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143 (3) OF THE ACT. THUS SUCH REOPENING IS BAD IN LAW AND RESULTANTLY THE REASSESSMENT PROCEEDINGS CARRIED OUT BY ISSUANCE OF NOTICE U/S 148 OF THE ACT IS LIABLE TO BE QUASHED. IN THE RESULT GROUND NO. 1 (A) & (B) OF THE ASSESSEES APPEAL STANDS ALLOWED AND ASS ESSMENT ORDER U/S 143(3) OF THE ACT DATED 11.10.2011 STANDS RESTO RED. 12. APROPOS GROUND NO.2 WHICH IS ON MERITS OF THE CASE RELATING TO ADDITION OF RS.92,05,981/- MADE BY THE LD. A.O D URING REASSESSMENT PROCEEDINGS, LD. COUNSEL FOR THE ASSE SSEE HAS CONTENDED THAT THE ISSUE RAISED IN GROUND NO.2 IS S QUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE CO -ORDINATE BENCH, HYDERABAD IN THE CASE OF VIJAYA BHAANI CONSTRUCTION PVT. LTD V/S DCIT (2017) 50 CCH 0132. WE HOWEVER ARE OF THE VIEW THAT ADJUDICATION OF THIS GROUND WILL BE ACADEMIC IN NA TURE SINCE WE PRAMOD PALIWAL ITA NO.271/IND/2018 13 HAVE ALREADY QUASHED THE REASSESSMENT PROCEEDINGS. WE THEREFORE WITHOUT GOING IN TO THE MERITS OF THE CASE DISMISS THE ASSESSEES GROUND NO.2 AS INFRUCTUOUS SINCE THE REASSESSMENT P ROCEEDING IN WHICH THE IMPUGNED ADDITION WAS MADE HAS ALREADY BE EN HELD BY US AS BAD IN LAW AND LIABLE TO BE QUASHED. 13. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . THE ORDER PRONOUNCED IN THE OPEN COURT ON 17.10.201 9. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 17 OCTOBER 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE