DCIT, Faridabad V. M/s. Voith Paper Fabrics India Ltd., Faridabad

ITA 6719/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3330 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 21-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRAVAN GOTRU
• Assessee Lawyers: SANTOSH KR AGGARWAL
• Keywords: Reopening of assessment; Depreciation; Business expenditure; Audit objection; Tangible material; Difference of opinion; Reason to believe; Change of opinion; Revenue expenditure; Reassessment proceedings
• Section: 143(3); 147; 148; 139

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D : NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 6719/DEL/2015 (ASSESSMENT YEAR: 2007 - 08 ) DCIT, CIRCLE - II, BLOCK - B, NEW CGO COMPLEX, FARIDABAD VS. VOITH PAPER FABRICS INDIA LTD, PLOT NO. 113 - 114A, SECTOR - 24, FARIDABAD PAN: AABCP0441Q (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SHRAVAN GOTRU, SR. DR ASSESSEE BY: SHRI SANTOSH KR. AGGARWAL, ADV DATE OF HEARING 31/08 /2017 DATE OF PRONOUNCEMENT 21 / 11 /2017 O R D E R PER PRASHANT MAHARISHI, A. M. 1. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD CIT(A) - FARIDABAD DATED 08.10.2015 FOR THE ASSESSMENT YEAR 2007 - 08. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) WAS RIGHT IN LAW IN QUASHING THE REASSESSMENT PROCEEDINGS U/S 147 OF THE INCOME TAX ACT, 1961 DISREGARDING THE FACT THAT REASSESSMENT PROCEEDINGS WERE VALIDITY INITIATED AS PROVISIONS OF SECTION 147 OF THE ACT WHICH WERE NOT CORRECT AND TRUE. 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS A COMPANY ENGAGED IN THE MANUFACTURING OF MACHINE CLOTHING PAPER INDUSTRIES. THE ASSESSE E FILED ITS RETURN OF INCOME ON 31/10/2007 FOR RS. 16044214/ - . THE ASSESSMENT UNDER SECTION 143 (3) WAS COMPLETED AT RS. 160835700/ - ON 9/12/2009. 4. SUBSEQUENTLY THE LD. ASSESSING OFFICER HAS NOTED THAT ASSESSEE HAS DEBITED A SUM OF RS. 1.82 CRORE UNDER THE HEAD REPAIRS TO PLANT AND MACHINERY AND RS. 34.67 PAGE | 2 LACS AS REPAIRS OTHERS WHICH IS ALSO MACHINERY. THE LD. ASSESSING OFFICER WAS OF THE OPINION THAT THESE EXPENDITURE ARE CAPITAL IN NATURE WHICH IS FORTIFIED BY THE DECISION OF THE HONBLE SUPREME CO URT IN CASE OF CIT VERSUS SARAVANA SPINNING MILLS PRIVATE LIMITED. FURTHER MORE ON THE PERUSAL OF THE DEPRECIATION CHART THE LD. ASSESSING OFFICER NOTED THAT THE VALUE OF ASSETS UNDER THE HEAD PLANT AND MACHINERY IS OF RS. 6.59 CRORE AND THE AMOUNT OF EXPE NSES ON REPAIRS IS AT RS. 2.17 CRORES. THEREFORE IT WAS NOTED THAT BY ITS NATURE IN VOLUME THE AMOUNT SPENT IS FOR THE PURPOSE OF BRINGING INTO EXISTENCE NEW ASSETS AND ALSO OBTAINING AN ENDURING ADVANTAGE . HENCE HE WAS OF THE OPINION THAT EXPENDITURE OF R S. 2.17 CRORES THOUGH CAPITAL IN NATURE AND WAS REQUIRED TO BE CAPITALISED BUT HAS BEEN DEBITED TO THE PROFIT AND LOSS ACCOUNT BY CLAIMING AS REVENUE EXPENDITURE . THUS ACCORDING TO HIM THE INCOME OF RS. 2.17 CRORES HAS ESCAPED ASSESSMENT WHICH REQUIRED T O BE BROUGHT TO TAX. THERE IS NOTICE UNDER SECTION 147 OF THE INCOME TAX RECEIVED AFTER GETTING NECESSARY APPROVAL OF THE COMMISSIONER ON 22/ 3/2013. IN RESPONSE TO THE NOTICE THE ASSESSEE FILED ITS RETURN OF INCOME ON 15/04/2013 AND OBJECTED TO THE INITIA TION PROCEEDINGS UNDER SECTION 17 OF THE INCOME TAX ACT. THE LD. ASSESSING OFFICER DISPOSED OFF THE OBJECTION FILED BY THE ASSESSEE WIDE LETTER DATED 27/9/2013 REJECTING THE OBJECTIONS RAISED. 5. ON REQUEST BY THE ASSESSEE LD. ASSESSING OFFICER, SUBSEQUENT TO PASSING OF ORDER DATED 27/9/2013, ON 4/12/2013, IS PROVIDED WITH THE COPIES OF REASONS RECORDED, AUDIT OBJECTION NAME NO. 19 DATED 27/10/2010, CERTIFIED COPY OF THE ORDER SHEET OF THE ASSESSMENT COMPLETED UNDER SECTION 143(3), ORDER SHEET OF PROCEEDING S UNDER SECTION 148 ALONG WITH OTHER DOCUMENTS AS REQUESTED. THE ASSESSEE FURTHER FILED OBJECTION BY LETTER DATED 13/12/2013. THE LD. ASSESSING OFFICER REJECTED THE OBJECTION WIDE SPEAKING ORDER DATED 25/2/2014. THE ASSESSEE FURTHER OBJECTED ON 4/3/2014 BU T DID NOT PERTAINING TO THE LD. ASSESSING OFFICER. THEREFORE WIDE ORDER DATED PAGE | 3 28/3/2014 THE ADDITION OF RS. 20041975/ - WAS MADE ON ACCOUNT OF REPAIR EXPENDITURE AFTER ALLOWING DEPRECIATION AT THE RATE OF 7.5%. THE TOTAL INCOME OF THE ASSESSEE WAS COMPUTED AT RS. 1 848 5189/ AGAINST THE RETURNED INCOME OF RS. 16044 3214/ . 6. THE ASSESSEE AGGRIEVED WITH THE ORDER OF THE LD. ASSESSING OFFICER PREFERRED AN APPEAL BEFORE THE LD. CIT (A) WHO PER ORDER DATED 8/10/2015 HAS HELD THAT THE CASE OF THE APPELLANT IS SQUA RELY COVERED BY JUDGMENT OF HONBLE GUJARAT HIGH COURT IN CASE OF CITIBANK TRANSPORT VERSUS ACIT 362 ITR 72 AND BEFORE THE ENGINEERS VERSUS 80 354 ITR 211 IS THE ASSESSMENT IS BEING REOPEN ON THE BASIS OF THE OPINION WHICH IS NOT PERMISSIBLE IN LAW. HE FUR THER HELD THAT WHILE ISSUING THE NOTICE UNDER SECTION 148 THE REASONS RECORDED DOES NOT SHOW THAT THE INCOME HAS ESCAPED DUE TO FAILURE ON PART OF THE APPELLANT TO DISCLOSE ALL MATERIAL FACTS IN ORIGINAL ASSESSMENT PROCEEDINGS. HE FURTHER NOTED THAT IN FAC T THE SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE DURING THE ORIGINAL ASSESSMENT PROCEEDINGS WHICH WAS REPLIED BY THE ASSESSEE AND NO ADDITION WAS MADE ON THE ISSUE WHICH IS SUBJECT MATTER OF REOPENING IN THE CASE. THEREFORE HE QUASHED THE REOPENING PROCE EDINGS. REVENUE, AGGRIEVED WITH THE ORDER OF THE LD. CIT (A) HAS PREFERRED AN APPEAL BEFORE US AS PER GROUNDS OF APPEAL STATED HEREINABOVE. 7. THE LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY CONTESTED THE ORDER OF THE LD. CIT (A) AND SUBMITTED THAT IT IS NOT T HE CHANGE OF THE OPINION BUT THE LD. ASSESSING OFFICER HAS GIVEN SUFFICIENT REASON WHY REOPENING IS VALID BY DISPOSING OF THE OBJECTIONS FILED BY THE ASSESSEE. HE FURTHER SUPPORTED THE ORDERS OF THE LD. ASSESSING OFFICER. 8. THE LD. AUTHORISED REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT (A) AND SUBMITTED THAT IT IS THE CHANGE OF OPINION BY THE LD. ASSESSING OFFICER ON THE APPRECIATION OF THE SAME SET OF FACTS. HE FURTHER REFERRED TO PAGE NO. 64 70 WHERE PAGE | 4 THE APPROVAL OF THE COMMISSIONER OF I NCOME TAX WAS OBTAINED. HE FURTHER REFERRED TO THE PAGE NO. 68 OF HIS PAPER BOOK WHICH IS THE AUDIT OBJECTION, HE SUBMITTED THAT THE REOPENING HAS BEEN MADE ON THE BASIS OF THE AUDIT OBJECTION. HE FURTHER REFERRED TO THE REASONS RECORDED BY THE LD. ASSESSI NG OFFICER WHICH DOES NOT SHOW THAT THERE IS ANY FAILURE ON PART OF THE ASSESSEE TO DISCLOSE THE MATERIAL FACTS. HE SUBMITTED THAT THE REOPENING HAS BEEN DONE AFTER THE PASSING OF 4 YEARS FROM THE END OF THE ASSESSMENT YEAR. 9. WE HAVE CAREFULLY CONSIDERED TH E RIVAL CONTENTIONS AND ALSO PERUSED THE ORDER OF THE LD. CIT (A) WHO HAS HELD THAT REOPENING IS NOT VALID. ADMITTEDLY REOPENING HAS BEEN CARRIED OUT IN THE PRESENT CASE THE 4 YEARS FROM THE END OF THE ASSESSMENT YEAR AND THEREFORE SUCH REOPENING IS ONLY M ADE IF THERE IS A FAILURE ON PART OF THE ASSESSEE TO DISCLOSE FACTS MATERIAL TO THE COMPETITION OF INCOME FULLY AND TRULY. IN THE PRESENT CASE IT IS THE REOPENING MADE ON THE BASIS OF THE AUDIT OBJECTION MADE BY THE AUDIT WING AND THE REASONS FOR THE REOPE NING ARE SAME AD VERBATIM. THE LD. CIT APPEAL HAS GIVEN THE REASONS FOR QUASHING THE REOPENING PROCEEDINGS AS UNDER: - 9. TO SUM UP, THE APPELLANT MADE FOLLOWING CONTENTIONS IN SUPPORT OF IT'S CLAIM: - 1. THE AUDIT OBSERVATIONS BASED ON THE VALUE OF APPELLANT COMPANY'S MACHINERY WERE MISLEADING SINCE THE VALUE MENTIONED WAS WRITTEN DOWN VALUE AS PER INCOME TAX ACT. WHEREAS, THE GROSS BLOCK (AT COST) OF MACHINERY WAS 28.92 CRORES AND OTHER BLOCKS WAS RS. 3.52 CRORES ON WHIC THESE REPAIR EXPENSES WERE INCURRED. THUS THE VALUE OF GROSS BLOCK (AT COST) WAS SUBSTANTIALLY HIGHER AND ASSESSING OFFICER AND AUDIT TEAM ERRED IN NOT VERIFYING THE SAME FROM THE RECORDS ALREADY AVAILABLE WITH THEM. 2. THE EXPENSES INCURRED WERE NORMAL WEAR AND TEAR EXPENSES AND DU LY EXAMINED DURING SCRUTINY PROCEEDINGS IN THE ORIGINAL ASSESSMENT BY THE THEN ASSESSING OFFICER AS EVIDENT FROM THE ORDER SHEET ENTRY AND VARIOUS SUBMISSIONS MADE BEFORE ASSESSING OFFICER. 3. THE REASSESSMENT PROCEEDINGS WERE BAD IN LAW BECAUSE AS PER THE PROVISIONS OF LAW UNDER SECTION 147, THE INCOME CHARGEABLE TO TAX SHOULD HAVE ESCAPED ASSESSMENT BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT, WHICH WAS NOT SATISFIED IN APPELLANT 'S CASE. 4. THE ASSESSING OFFICER HAS NOWHERE REFERRED TO ANY 'TANGIBLE INFORMATION' COMING TO HIS POSSESSION AFTER THE CONCLUSION OF THE ORIGINAL ASSESSMENT U/S 143(3) WHICH CAN LEAD TO HIS 'REASON TO BELIEVE' THAT INCOME HAS ESCAPED ASSESSMENT. THE AO HA S TAKEN SUPPORT ONLY FROM THE DOCUMENTS FURNISHED DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS WHICH WERE CONSIDERED AND ACCEPTED, AND UPON WHICH THE CLAIM OF THE APPELLANT WAS ALLOWED AT THAT TIME. PAGE | 5 5. THE ASSESSING OFFICER HAS ONLY DONE A REVIEW O N THE SAME SET OF DOCUMENTS AND FACTS THUS LEADING TO THE 'REVIEW OF ASSESSMENT ORDER' ALREADY PASSED. 6. THE ISSUES ON WHICH THE ADDITIONS HAVE BEEN MADE NOW, WERE RAISED BY THE AO AND ANSWERED BY THE ASSESSEE IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND THE ASSESSING OFFICER DID NOT MAKE ANY ADDITION AFTER EXAMINING THE ISSUE ON ACCOUNT OF HIS COMPLETE SATISFACTION WITH THE APPELLANT'S REPLY. IN SUCH A SITUATION, THE REASSESSMENT PROCEEDING ARE INVALID BECAUSE THE AO HAD FORMED AN OPINION IN THE ORIGINAL ASSESSMENT PROCEEDINGS AFTER CONSIDERING ALL THE RELEVANT FACTS. IN VIEW OF THIS AND IN THE BACKGROUND OF THE PRINCIPLE OF LAW AS HAS BEEN APPROVED BY THE JUDICIAL AUTHORITIES ON THIS ISSUE, THE REASSESSMENT PROCEEDINGS INITIATED AGAINST THE APPELLANT ARE BASED ON 'CHANGE OF OPINION' ARE LIABLE TO BE QUASHED. 7. THE APPELLANT HAVING ALREADY DISCLOSED ALL THE FACTS DURING THE ASSESSMENT STAGE, THERE COULD NOT BE ANY ALLEGATION THAT THERE WAS ANY FAILURE ON ITS PART TO FURNISH ANY MATERIAL DOCUMENTS AND HENCE THE PRECONDITION TO THE PROVISIO TO SECTION 147 OF THE ACT IS NOT BEING FULFILLED. THUS, THE REASSESSMENT PROCEEDINGS WERE VOID - AB - INITIO BEING TIME BARRED AND LIABLE TO BE EXPUNGED. 8. THE REASSESSMENT PROCEEDINGS WERE INITIATED BASED SOLELY ON AUDIT OBJ ECTIONS AND WITHOUT ANY APPLICATION OF THE MIND BY AO AS EVIDENT FROM THE REASONS RECORDED FOR REOPENING U/S 147 AND THUS CONSIDERING THE POSITION OF LAW AS HAS EVOLVED OVER THE YEARS, THE ENTIRE ASSESSMENT PROCEEDINGS ARE LIABLE TO BE QUASHED. 9. THERE AR E CONTRADICTORY STATEMENTS PRESENT IN THE IMPUGNED ORDER WHEREAS, AT ONE PLACE THE AO HAS RECORDED THAT, ON THE BASIS OF DETAILS FURNISHED IT IS EVIDENT THAT THERE ARE EXPENSES OF ENDURING NATURE WHICH WERE WRONGLY ALLOWED IN THE ORIGINAL ASSESSMENT. WHILE AT THE OTHER PLACE THE AO HAS STATED, THAT THE APPELLANT HAS CONFINED TO EVADE FURNISHING DETAILS RELATING TO THE SAME ITEM UNDER DISPUTE. 10) THE REPAIR EXPENSES INCURRED WERE FOR DAY TO DAY MAINTENANCE OF ALREADY EXISTING ASSETS AND ACCORDINGLY, ARE CUR RENT .REPAIRS AS PER THE PRINCIPLES LAID DOWN BY VARIOUS JUDICIAL AUTHORITIES. 11) THE AO HAS MISAPPLIED THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS SARVANA SPINNING MILLS (P) LTD. AS PER THIS JUDGMENT THE BASIC TEST LAID DOWN FOR DETER MINING WHAT WOULD CONSTITUTES 'CURRENT REPAIRS' IS THAT THE EXPENDITURE MUST HAVE BEEN INCURRED TO PRESERVE AND MAINTAIN AN EXISTING ASSET. THE APPELLANT'S EXPENDITURE ON REPAIR AND MAINTENANCE ARE TOWARDS PRESERVATION AND MAINTENANCE OF EXISTING ASSETS AN D THUS THIS DECISION HAS BEEN MISINTERPRETED BY THE AO. 10. HAVING BROUGHT OUT THE CRUX OF THE ARGUMENTS OF THE AO AS WELL AS THE APPELLANT THE SEQUENCE OF EVENTS AND CRUCIAL FACTS LEADING UP TO THE FRAMING OF THE ASSESSMENT ORDER UNDER APPEAL ARE ENUMERAT ED FOR THE SAKE OF CLARITY AS BELOW: A) THE APPELLANT FILED ITS RETURN OF INCOME OF RS. 16,04,43,214/ - ON 30.10.2007. B. IN RESPONSE TO THE QUESTIONNAIRE ISSUED TO ASSESSEE TOGETHER WITH OTHER NOTICE U/S 143(2) AND 142(1), THE ASSESSEE FILED ITS REPLIES ON VARIOUS DATES. C. THE APPELLANT VIDE ITS REPLY DATED 29/06/2009 SUBMITTED THE DETAILS OF THE EXPENSES ON REPAIR PLANT & MACHINERY AND OTHERS REPAIR TOGETHER WITH OTHER REQUISITE DETAILS. D. AS PER ORDER ENTRY SHEET DATED 27.11.2009 THE ASSESSING OFFICER A FTER GOING THROUGH THE EARLIER SUBMITTED DETAILS REQUIRED THE ASSESSEE TO FURNISH THE DETAILS AS UNDER: - III) NATURE OF EXPENSES ON BUILDING REPAIRS & OTHERS. SHOW CAUSE WHY IT SHOULD NOT BE CAPITALIZED. IV) NATURE OF EXPENSES ON PLANT & MACHINERY REPAIR OF 1.82 CR. SHOW CAUSE WHY IT SHOULD NOT BE CAPITALIZED. E. THE APPELLANT VIDE LETTER DATED 01.12.2009, FILED ITS REPLY TOTHE SHOW CAUSE ON WHY THE REPAIR EXP. SHOULD NOT BE CAPITALIZED. F. VIDE THE ORDER ENTRY SHEET 01.12.2009, THE ASSESSING OFFICER AGAI N ASKED FOR PAGE | 6 THE HEAD WISE BROAD CLASSIFICATION FOR BUILDING REPAIR & MAINT. AND STORE LEDGER WITH REGARDS TO STORE CONSUMPTION EXP. AND REPAIR PLANT, BUILDING AND OTHERS ROUTED THROUGH STORES. G. THE APPELLANT VIDE ITS LETTER 08.12.2009 SUBMITTED BOTH THE ABOVE DETAILS. THE ASSESSING OFFICER PASSED AN ORDER U/S 143(3) DATED 09.12.2009 AFTER CONSIDERING THE EXPENDITURE AMOUNTING TO RS. 4,36,000/ - CLAIMED UNDER THE HEAD 'REPAIR & MAINT. BUILDING' AS OF CAPITAL IN NATURE. AFTER ALLOWING THE DEPRECIATION THE NE T ADDITION WAS FOR RS.3,92,490/ - I) THE APPELLANT INSTITUTED AN APPEAL BEFORE CIT(A), FARIDABAD AGAINST THE ADDITION OF RS. 3,92,490/ - ON 05.01.2010. J) THE LEARNED CIT(A) DELETED THE ADDITION IN TOTAL, VIDE THE ORDERDATED 25.02.2011. K) THE ASSESSING OF FICER, CIRCLE - LL ISSUED NOTICE U/S 148 OF THE ACT DATED 22.03.2013. L) THE APPELLANT FILED IT'S REPLIES ON VARIOUS DATES RAISING TECHNICAL OBJECTIONS ON THE LEGALITY OF THE REASSESSMENT PROCEEDINGS, M) THE ASSESSING OFFICER PASSED AN ORDER DATED 27.09.2013 REJECTING THE OBJECTIONS OF THE APPELLANT. ANOTHER ORDER DATED 28.02.2014 WAS AGAIN PASSED REJECTING APPELLANT'S OBJECTIONS, N) THE REASSESSMENT ORDER DATED 28.03.2014 WAS PASSED BY ASSESSING OFFICER, CIRCLE - LL AND VIDE THIS ORDER THE ASSESSING OFFICER DI SALLOWED RS. 2,16,67,000/ - (WHOLE OF THE EXP. OF REPAIR PLANT RS. 1,82,93,627/ - AND REPAIR OTHERS 34,67,623/ - ) AFTER ALLOWING DEP. @7.5% THEREBY MAKING AN ADDITION TO INCOME OF RS. 2,00,41,975/ - . 11. IT IS IN THE BACKGROUND OF THESE FACTS THAT THE PROVISIO NS OF SECTION 147/ 148 ARE BEING EXAMINED. A) FOR REOPENING AN ASSESSMENT MADE UNDER SECTION 148 OF THE ACT, THE FOLLOWING CONDITIONS ARE REQUIRED TO BE SATISFIED: - (I) THE ASSESSING OFFICER MUST FORM A TENTATIVE OR PRIMA FACIE OPINION ON THE BASIS OF MAT ERIAL THAT THERE IS UNDER - ASSESSMENT OR ESCAPEMENT OF INCOME; (II) HE MUST RECORD THE PRIMA FACIE OPINION INTO WRITING; (III) THE OPINION FORMED IS SUBJECTIVE BUT THE REASONS RECORDED OR THE INFORMATION AVAILABLE ON RECORD MUST SHOW THAT THE OPINION IS N OT A MERE SUSPICION. (IV) REASONS RECORDED AND/OR THE DOCUMENTS AVAILABLE ON RECORD MUST SHOW A NEXUS OR THAT IN FACT THEY ARE GERMANE AND RELEVANT TO THE SUBJECTIVE OPINION FORMED BY THE ASSESSING OFFICER REGARDING ESCAPEMENT OF INCOME. (V) IN CASES WHERE THE FIRST PROVISO APPLIES, THERE IS AN ADDITIONAL REQUIREMENT THAT THERE SHOULD BE FAILURE OR OMISSION ON THE PART OF THE ASSESSEE IN DISCLOSING FULL AND TRUE MATERIAL FACTS. EXPLANATION TO THE SECTION STIPULATES THAT MERE PRODUCTION OF BOO KS OF ACCOUNTS OR OTHER DOCUMENTS FROM WHICH THE ASSESSING OFFICER COULD HAVE, WITH DUE DILIGENCE, INFERRED MATERIAL FACTS, DOES NOT AMOUNT TO 'FULL AND TRUE DISCLOSURE OF MATERIAL FACTS'. 12. A PLAIN READING OF PROVISO TO SECTION 147 MAKES IT MORE THAN C LEAR THAT WHERE THE PROVISION OF SECTIONL47 ARE BEING INVOKED AFTER PERIOD OF 4 YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR, IN ADDITION TO AO HAVING REASONS TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, IT MUST ALSO BE ESTABLISHE D AS A FACT THAT SUCH ESCAPEMENT HAS BEEN OCCASIONED BY EITHER ASSESSEE FAILURE TO MAKE RETURN U/S 139 ETC. ,OR BY REASON OF FAILURE ON PART OF ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT. THE SAME HAS BEEN EXPLAINE D IN DETAIL BY THE TERRITORIAL HIGH COURT IN THE CASE OF DUILICHAND SINGHANIA VS ACIT 269 ITR 192 (P&H) SIMILAR VIEW WAS TAKEN BY HON'BLE DELHI HIGH COURT IN CASE OF SUREN INTERNATIONAL PYT. LTD. 357 ITR 24. 13. THE SECTION ESSENTIALLY DEALS WITH INCOME ES CAPING ASSESSMENT. IT EMPOWERS THE AO TO REOPEN THE PROCEEDINGS IF HE HAS REASON TO BELIEVE THAT THE WHOLE INCOME OR PART OF THE INCOME HAS NOT BEEN TAKEN INTO CONSIDERATION DURING ASSESSMENT PROCEEDINGS. THE SECTION IDENTIFIES TWO ESSENTIALS TO THE REOPEN ING OF PAGE | 7 ASSESSMENT PROCEEDINGS. THE AO MUST HAVE 'SUFFICIENT REASON TO BELIEVE' THATTHE INCOME HAD ESCAPED ASSESSMENT AND, SECONDLY, THERE MAY BE INCOME WHICH HAS COME TO HIS NOTICE SUBSEQUENTLY AFTER THE ASSESSMENT PROCEEDINGS HAVE BEEN CLOSED. 14. AN IMPO RTANT ISSUE CENTRAL TO MANY OF THE LITIGATIONS RELATED TO RE - OPENING OF THE CASES U/S 147/148 PERTAIN TO THE WORD 'OPINION' OF THE AO. THE CHANGE OF OPINION, HOWEVER, IS NOT A STRAIGHTFORWARD ISSUE. IF THE AO HAS NOT TAKEN A CONSCIOUS DECISION ON THE MATER IAL AVAILABLE TO HIM, THE CHANGE OF OPINION CANNOT BE A REASON TO CURTAIL THE REOPENING OF ASSESSMENT PROCEEDINGS. IN THIS REGARD, IT HAS BEEN HELD BY THE APEX COURT THAT: 'THE PRINCIPLE THAT A MERE CHANGE OF OPINION CANNOT BE A BASIS FOR REOPENING COMPLET ED ASSESSMENTS WOULD BE APPLICABLE ONLY TO SITUATIONS WHERE THE ASSESSING OFFICER HAS APPLIED HIS MIND AND TAKEN A CONSCIOUS DECISION ON A PARTICULAR MATTER IN ISSUE. IT WILL HAVE NO APPLICATION WHERE THE ORDER OF ASSESSMENT DOES NOT ADDRESS ITSELF TO THE ASPECT WHICH IS THE BASIS FOR REOPENING OF THE ASSESSMENT, AS WAS THE POSITION IN THE INSTANT CASE.'[ID.] 15. FURTHER, THE COURT HAS ALSO HELD THAT: - IF CONSCIOUS APPLICATION OF MIND IS MADE TO THE RELEVANT FACTS AND MATERIAL AVAILABLE OR EXISTING AT TH E RELEVANT POINT OF TIME WHILE MAKING ASSESSMENT AND AGAIN A DIFFERENT OR DIVERGENT IS SOUGHT, IT WOULD TANTAMOUNT TO CHANGE OF OPINION, WHEREAS IN THE CASE OF EXISTING MATERIAL NO CONSCIOUS ATTEMPT HAS BEEN MADE, IT WOULD TANTAMOUNT TO MISTAKE IN NOT CONS IDERING THE RELEVANT POINT OR PROPOSITION AND IT WOULD NOT BE A CHANGE OF OPINION. GRUH FINANCE LTD. VS. JT. CIT MANU/ GJ/0027/2000 (2000) 243 ITR 482. 16. IN OTHER WORDS, IF THE AO IN THE FIRST PLACE HAD NOT TAKEN A CONSCIOUS DECISION BASED ON THE MATER IAL FACTS PUT FORTH BY THE ASSESSEE, THE REOPENING CANNOT BE CHALLENGED ON THE GROUNDS THAT THERE WAS A 'MERE CHANGE IN OPINION'. IT MUST BE KEPT IN MIND THAT THOUGH IT IS THE DUTY OF THE ASSESSEE TO DISCLOSE ALL THE MATERIAL FACTS BEFORE THE AUTHORITY, TH E CONCLUSION DRAWN FROM THESE FACTS WAS UP TO THE AO. THE AO CANNOT ACT ON A MERE SUSPICION OR INSTINCT THAT THERE HAS BEEN ERROR IN ASSESSMENT. 17. IN THIS BACKGROUND HAVING CONSIDERED ALL THE FACTS RELEVANT TO THE CASE, ORDER OF THE AO AND SUBMISSIONS O F THE APPELLANT AND AFTER VERIFYING THE FACTS I FIND THAT C FROM PAGE 28: A) IN RESPONSE TO THE QUESTIONNAIRE ISSUED TO ASSESSEE TOGETHER WITH THE NOTICE U/S 143(2) AND 142(1), THE ASSESSEE FILED ITS REPLIES ON VARIOUS DATES. THE APPELLANT VIDE ITS REPLY DATED 29.06.2009 SUBMITTED THE DETAILS OF THE EXPENSES ON REPAIR ON PLANT AND MACHINERY AND OTHER REPAIR TOGETHER WITH OTHER REQUISITE DETAILS. B). THE AO HAD INDEED ASKED THE ASSESSEE ON 27.11.2009 TO FURNISH THE DETAILS OF PLANT & MACHINERY REPAIR AMOUN TING TO RS.1.8 CR. AND ASKED THE ASSESSEE TO SHOW CAUSE WHY THE SAME SHOULD NOT BE CAPITALIZED. (THIS IS EVIDENT FROM THE COPY OF THE ORDER SHEET FURNISHED BY THE APPELLANT, OBTAINED BY THE APPELLANT AFTER TAKING AN INSPECTION OF THE ASSESSMENT FOLDER OF T HE AO) C) THE APPELLANT REPLIED TO HIS SHOW CAUSE OF THE AO VIDE LETTER DATED 01.12.2009 AND 08.12.2009 D) THE AO PASSED THE ASSESSMENT ORDER U/S 143(3) ON 09.12.2009 WHEREIN AN ADDITION WAS MADE UNDER THE HEAD 'REPAIRS AND MAINTENANCE OF BUILDING' AND NO ADDITION WAS MADE BY HIM UNDER THE HEAD 'REPAIR AND MAINTENANCE OF MACHINERY' E) FROM THE ABOVE IT IS ABSOLUTELY CLEAR THAT THIS ISSUE WAS EXAMINED BY THE AO DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS AND BEING SATISFIED WITH THE APPELLANT'S CONT ENTION, NO ADDITION WAS MADE ON THIS ISSUE. F) PERUSAL OF THE REASONS RECORDED U/S 147 CLEARLY SHOW THAT THE CASE HAS BEEN REOPENED ON THIS VERY ISSUE I.E. 'REPAIR & MAINTENANCE' OF RS.1.82 CR. ON PLANT & MACHINERY. THIS AMOUNTS TO RE APPRAISAL AND REVIEW OF THE SAME FACTS AND REOPENING OF ASSESSMENT U/S 147 IS NOT PERMISSIBLE BASED ON THE CHANGE OF PAGE | 8 OPINION OF THE AO ON ANY GIVEN SET OF FACTS. G) PERUSAL OF THE REASONS RECORDED U/S 147 ALSO CLEARLY SHOWS THAT THE AO HAS HELD THAT THE VALUE OF ASSETS UNDER T HE HEAD 'PLANT AND MACHINERY' IS RS.6.59 CR. AND THE AMOUNT OF EXPENSE OF REPAIR IS RS.2.17 CR. HOWEVER IT IS SEEN THAT DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS THE APPELLANT VIDE ITS LETTER DATED 04.02.2009 TO THE AO HAS SUBMITTED ITS AUDITED BALANCE SHEET, P&L ACCOUNT AND TAX AUDIT REPORT WITH ALL RELEVANT ANNEXURE. PERUSAL OF SCHEDULE V OF THE BALANCE SHEET SHOWS THAT THE GROSS BLOCK (AT COST) OF PLANT AND MACHINERY IS RS.28.92 CR. IN RESPECT OF WHICH REPAIR EXPENSES OF RS.1.86 CR. WERE INCUR RED. SECONDLY THE GROSS BLOCK (AT COST) OF OFFICE EQUIPMENT FURNITURE ETC. IS FOR 3.52 CR. AS ON 01.04.2006, ON WHICH REPAIR EXPENSE OF 34.67 LACS WAS INCURRED. HENCE THE TOTAL REPAIR OF RS.2.17 CR. WERE INCURRED ON FIXED ASSETS HAVING GROSS BLOCK (AT COST ) OF 32.44 CR. THIS CLEARLY SHOWS THAT EVEN ON FACTS THE REASONS RECORDED BY THE AO ARE FACTUALLY WRONG AND THE AO HAS ERRONEOUSLY TAKEN THE WRITTEN DOWN VALUE OF THE GROSS BLOCK AS PER THE INCOME TAX ACT. IT IS ONLY WHEN THE REPAIR AND MAINTENANCE EXPENSE S ARE COMPARED WITH THE TOTAL COST OF THE MACHINERY AND NOT THE WRITTEN DOWN VALUE THAT ONE CAN DRAW AN INFERENCE ABOUT THE PROPORTIONATE COST OF REPAIRS VIZ - A - VIZ THE COST OF MACHINERY. H. A PLAIN READING OF PROVISO TO SECTION 147 MAKES IT MORE THAN CLEAR THAT WHERE THE PROVISION OF SECTIONL47 ARE BEING INVOKED AFTER PERIOD OF 4 YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR, IN ADDITION TO AO HAVING REASONS TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, IT MUST ALSO BE ESTABLISHED AS A FACT THAT SUCH ESCAPEMENT HAS BEEN OCCASIONED BY EITHER ASSESSEE'S FAILURE TO MAKE RETURN U/S 139 ETC. ,OR BY REASON OF FAILURE ON PART OF ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT. PERUSAL OF THE FACTS OF THE CASE CLEARLY SHOW THAT THE AO HAS NOT BEEN ABLE TO ESTABLISH AT ALL THAT THERE WAS ANY FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSEYULY AND FULLY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT. IN FACT IT IS QUITE EVIDENT THAT THE FACTS RELEVANT TO THE REOPENING WERE CALLED FOR BY THE AO AND DULY FURNISHED BY THE APPELLANT DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS. 18. HAVING EXAMINED THE FACTS OF THE CASE IT SHALL NOT BE OUT OF PLACE TO EXAMINE THE VARIOUS JUDICIAL DECISIONS RELEVANT TO THES E FACTS. 19. I FIND THAT HON'BLE GUJARAT HIGH COURT IN CASE OF VISHWANATH ENGINEERS VS ACIT 354 ITR211 HAS EXAMINED SIMILAR ISSUE AND HELD NATURE OF EXPENDITURE EXAMINED IN ORIGINAL ASSESSMENT PROCEEDING AND EXPENSES TREATED AS BUSINESS EXPENSES. REOPENING ASSESSMENT TO DISALLOW SUCH EXPENDITURE IS IMPERMISSIBLE. FOR SAKE OF CONVENIENCE THE RELEVANT PART OF JUDGMENT IS BEING REPRODUCED AS UNDER 'IN THE PRESENT CASE, WE MAY RECALL THAT THE ASSESSEE MADE FULL DISCLOSURE ABOUT EXPENDITURE IN QUESTION. THE ASSE SSING OFFICER CALLED UPON THE ASSESSEE TO EXPLAIN ALL THE EXPENSES . THE SUM QF RS. 751771/ - WAS A SIZABLE EXPENDITURE, WHICH THE ASSESSEE CLAIMED BY WAY OF BUSINESS EXPENDITURE. HE GAVE DETAILED REPLY TO QUERIES RAISED BY THE AO IN THIS RESPECT. HE POINTE D OUT THAT THE ASSESSEE HAD RECEIVED VARIOUS DEPOSITS FROM CO - OPERATIVE SOCIETIES. SUCH DEPOSITS WERE RETAINED WITHOUT PAYING ANY INTEREST. AGAINST THAT THE ASSESSEE HAD THE RESPONSIBILITY TO MEET WITH PART OF MAINTENANCE EXPENDITURE OF THE SOCIETY . THE EXPENSES WHICH WERE THE PETITIONER BORNE IN SIX MONTH OF THE YEAR, WERE LESS THAN 4 % OF THE DEPOSIT AMOUNT. AFTER EXAMINING SUCH DETAILS, THE AO HAD FRAMED HIS ORIGINAL ASSESSMENT. OF COURSE , IN SUCH ASSESSMENT, HE HAD NOT MADE ANY SPECIFIC MENTION OF AC CEPTING SUCH EXPENDITURE. WITHOUT THERE BEING ANY THING ADDITIONAL ON RECORD, ANY ATTEMPT ON THE PART OF THE AO TO DISALLOW SUCH EXPENDITURE BY REOPENING ASSESSMENT WOULD BE BASED ON MERE CHANGE OF OPINION AND, THEREFORE, NOT PERMISABLE IN LAW. IN THE RESU LT, THE IMPUGNED NOTICE DATED 19.4.2010 IS QUASHED RESULTANTLY , THE ASSESSMENT WHICH CAME TO BE FRAMED BY THE AO ALSO WOULD STAND INVALIDATED. RULE IS MADE ABSOLUTE ACCORDINGLY WITH NO ORDER AS TO COSTS.' 20. THE SAME VIEW WAS TAKEN BY GUJARAT HIGH COURT IN CASE OF SIDDHI VINAYAK TRANSPORT VS ACIT 362 ITR72. IN THIS CASE THEIR LORDSHIP HAD HELD ALLOWING THE PETITION PAGE | 9 'THAT THIS WAS NOT THE CASE WHERE AO WHILE IN ORIGINAL SCRUTINY ASSESSMENT AO DID NOT EXAMINED THE ASSESSEE,S CLAIMS TO DEDUCTION. HE WAS ACTU ALLY CONSCIOUS ABOUT SUCH DA M AND WAS OF OPINION THAT ENTIRE CLAIM WAS NOT REQUIRE TO BE GRANTED, HE CALLED FOR ALL EXPENCITURE DETAILS OF ASSESSEE AND AFTER CONSIDERING SAME MADE DISALLOWANCE TO THE EXTENT HE WAS CONVINCED IF, IN THE PROCESS HE MADE A LE GAL ERROR, THE SUCCEEDING AO COULD NOT CORRECT SUCH AN ERROR THROUGH THE PROCESS OF REOPENING OF ASSESSMENT. THE NOTICE WAS NOT VALID.' 21. I FIND THAT CASE OF APPELLANT IS SQUARELY COVERED BY JUDGMENTS OF GUJRAT HIGH COURT IN THE CASES OF SIDDHI VINAYAK T RANSPORT VS ACIT 362 ITR72ANDVISHWANATH ENGINEERS VS ACIT 354 ITR211 AS THE ASSESSMENT IS BEING REOPENED ON THE BASIS OF CHANGE OF OPINION WHICH IS NOT PERMISSIBLE IN LAW. I FURTHER FIND THAT THE CASE OF APPELLANT IS SQUARELY COVERED BY JUDGMENT OF P&H HIG H COURT IN CASE OF DULLICHAND SINGHANIA VS ACIT 269 ITR 192 (P&H). 22. RELIANCE IS ALSO PLACED ON THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF ICICI PRUDENTIAL LIFE INSURANCE CO. LTD VS ACIT REPORTED IN 325 ITR 471 WHEREIN THE AO INTENDED TO REOPEN THE CONCLUDED ASSESSMENT ON THE BASIS OF THE DOCUMENTS FURNISHED AT THE ASSESSMENT STAGE. THE DOCUMENTS WERE FURNISHED ALONG WITH ELABORATE EXPLANATION UPON SPECIFIC INQUIRY RAISED UPON BY THE AO. THE ASSESSMENT ORDER ALTHOUGH HIRI THE ORIGINAL ORDER, THE AO I NTENDED TO REOPEN THE ASSESSMENT. THE HON'BLE COURT IN THIS CASE HAS HELD THAT SINCE THE AO DID NOT HAVE ANY TANGIBLE MATERIAL AND THE REASON RECORDED REFER TO THE SAME BASIS WHICH WAS PRESENT DURING ORIGINAL ASSESSMENT, WHAT THE AO INTENDED WAS ARISING OU T OF A MERE CHANGE OF OPINION IN THE ABSENCE OF ANY NEW MATERIAL/INFORMATION AND HENCE THE NOTICE OF REASSESSMENT SHOULD BE QUASHED. SIMILARLY IN THE CASE OF SANAND PROPERTIES (P.) LTD VS JCIT REPORTED IN 343 ITR 388, THE BOMBAY HIGH COURT HAS HELD THAT IN THE ABSENCE OF ANY VALID OR TANGIBLE MATERIAL TO SUBSTANTIATE THE INITIATION OF REASSESSMENT THE AO WAS MERELY ACTING UPON A CHANGE IN HIS OPINION WHICH DOES NOT VALIDATE THE REASSESSMENT PROCEEDINGS. THE COURT NOTED THAT THE DOCUMENTS UPON WHICH THE AO W AS RELYING TO INITIATE REASSESSMENT WAS ALREADY PRESENT AT THE TIME OF THE ORIGINAL ASSESSMENT AND ACCORDINGLY THERE WAS NO TANGIBLE MATERIAL IN POSSESSION OF THE AO TO JUSTIFY INITIATION OF REASSESSMENT. 23. RELIANCE MAY FURTHER BE PLACED UPON THE JUDGMEN T OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. JAGSON INTERNATIONAL LTD. REPORTED IN 321 ITR 544 WHERE THE RATIO HAS BEEN FOLLOWED THAT IF NO NEW INFORMATION/MATERIAL HAD COME TO THE AO AFTER COMPLETING THE ORIGINAL ASSESSMENT TO FORM ANY BELIEF ABOUT THE ESCAPEMENT OF THE ASSESSEE'S INCOME AND THAT THE PURPORTED BELIEF WAS ENTIRELY BASED ON RE - APPRAISAL OR RE - CONSIDERATION OF THE MATERIAL/INFORMATION ALREADY AVAILABLE ON RECORD AT THE TIME OF COMPLETION OF THE ORIGINAL ASSESSMENT, THEN THE REOPEN ING OF ASSESSMENT WAS NOT WARRANTED UNDER LAW. FURTHER, THE SUPREME COURT HAS ALREADY LAID DOWN THE LAW IN THIS RESPECT IN THE CASE OF KELVINATOR OF INDIA LTD (SUPRA) WHERE IT HAS BEEN HELD THAT THE AO HAVE TO BE POSSESSED WITH TANGIBLE MATERIALS TO SUBSTA NTIATE THEIR PCTION OF INITIATING REASSESSMENT. THE HEAD NOTE FOR WHICH IS REPRODUCED BELOW: 'INCOME ESCAPING ASSESSMENT - GENERAL - WHETHER AFTER SUBSTITUTION OF SECTION 147 BY DIRECT TAX LAWS (AMENDMENT) ACT, 1987, CONCEPT OF 'CHANGE OF OPINION' MUST BE TREATED AS AN IN - BUILT TEST TO CHECK ABUSE OF POWER BY ASSESSING OFFICER - HELD, YES - WHETHER, THEREFORE, AFTER 1 - 4 - 1989, ASSESSING OFFICER HAS POWER TO RE - OPEN, PROVIDED THERE IS 'TANGIBLE MATERIAL' TO COME TO CONCLUSION THAT THERE IS ESCAPEMENT OF INCO ME FROM ASSESSMENT; REASONS MUST HAVE A LIVE LINK WITH FORMATION OF BELIEF - HELD, YES.' I SHALL BE PERTINENT TO REPRODUCE THE HEAD NOTE OF THE HON'BLE DELHI HIGH COURT, FULL BENCH DECISION IN THE CASE OF CIT VSLLSHA INTERNATIONAL LTD. [2012] 25 TAXMANN.CO M 200 (DELHI)/[2012] 210 TAXMAN 188 (DELHI)/2012] 348 ITR 485 (DELHI)/[2012] 253 CTR 113 (DELHI): 'SECTION 147 OF THE INCOME - TAX ACT, 1961, READ WITH SECTION 114 OF THE EVIDENCE ACT, 1872 - INCOME ESCAPING ASSESSMENT - NON DISCLOSURE OF PRIMARY FACTS - WHE THER REASSESSMENT PROCEEDINGS CAN BE VALIDLY INITIATED IN CASE RETURN OF INCOME IS PROCESSED ONLY UNDER SECTION 143(1) AND NO SCRUTINY ASSESSMENT IS UNDERTAKEN AS IT WOULD BE CASE OF FORMATION OF NO OPINION AND, HENCE, IN SUCH CASES THERE IS NO CHANGE OF O PINION - HELD, YES - WHETHER REASSESSMENT PAGE | 10 PROCEEDINGS WILL BE INVALID IN CASE ASSESSMENT ORDER ITSELF RECORDS THAT ISSUE WAS RAISED AND IS DECIDED IN FAVOUR OF ASSESSEE; REASSESSMENT PROCEEDINGS IN SAID CASES WILL BE HIT BY PRINCIPLE OF 'CHANGE OF OPINION' - HELD, YES - WHETHER THERE CANNOT BE DEEMED FORMATION OF OPINION INVOKING PRESUMPTION UNDER SECTION 114(E) OF EVIDENCE ACT WHERE PARTICULAR SUBJECT MATTER, ENTRY OR CLAIM/DEDUCTION IS NOT EXAMINED - HELD, YES - WHETHER REASSESSMENT PROCEEDINGS WILL BE IN VALID IN CASE AN ISSUE OR QUERY IS RAISED AND ANSWERED BY ASSESSEE IN ORIGINAL ASSESSMENT PROCEEDINGS BUT THEREAFTER ASSESSING OFFICER DOES NOT MAKE ANY ADDITION IN ASSESSMENT ORDER - HELD, YES [IN FAVOUR OF ASSESSEE]' 24. THUS AFTER CONSIDERING THE FACTS OF THE APPELLANT'S CASE I HOLD THAT NOTICE U/S 148 IS BAD IN LAW AND SAME IS QUASHED, TAKING STRENGTH FROM THE ABOVE JUDICIAL DECISIONS WHICH ARE CONGRUENT WITH THE FACTS OF THE APPELLANTS CASE, AS HAS BEEN DEMONSTRATED BY ME IN THE EARLIER PART OF THIS O RDER. FROM A PERUSAL OF PARA 17 OF THIS ORDER IT IS APPARENT THAT (A) THERE WAS NO FINDING WHILE REOPENING THE CASE THAT INCOME HAD ESCAPED ASSESSMENT DUE TO FAILURE ON PARI OF APPELLANT TO DISCLOSE ALL MATERIAL FACTS IN ORIGINAL ASSESSMENT PROCEEDING; IN FACT A SHOW CAUSE WAS ISSUED DURING THE ORIGINAL ASSESSMENT TO THE APPELLANT AND NO ADDITION WAS MADE ON THE ISSUE WHICH IS A SUBJECT MATTER OF REOPENING THE CASE (B) THE CASE WAS RE - OPENED ON A MERE CHANGE OF OPINION AND REAPPRAISAL OF THE SAME FACTS. THU S IN VIEW OF THESE FACTS I HOLD THAT THE REOPENING THE CASE BY THE AO U/S 147 IS BAD IN LAW AND IS QUASHED AND GROUND NOS. 1 TO 11 OF THE APPELLANT ARE ALLOWED. LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CONTROVERT ANY OF THE FINDINGS OF THE LD. CIT (A) WH ILE QUASHING REOPENING PROCEEDINGS. WE ALSO DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT (A) IN QUASHING THE ASSESSMENT PROCEEDINGS FOR THE REASON THAT IN THE REASONS RECORDED BY THE LD. ASSESSING OFFICER IS NO ALLEGATION THAT THE SALE ON PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT. FURTHER THE REOPENING HAS BEEN CARRIED OUT AFTER THE 6 YEARS AND WHAT WAS THE TANGIBLE MATERIAL THAT HAS COME TO INTO THE POSSESSION OF THE LD. ASSESSING OFFICER FOR REOP ENING HAS ALSO NOT BEEN MENTIONED. MORE IMPORTANTLY IT WAS MERELY ON THE REAPPRAISAL OF THE SAME SET OF FACTS WHICH WERE THERE IN THE ORIGINAL ASSESSMENT. IN VIEW OF THIS WE CONFIRM THE ORDER OF THE LD. CIT (A) IN QUASHING THE REOPENING PROCEEDINGS OF THE ASSESSMENT. THEREFORE THE SOLITARY GROUND OF THE APPEAL OF THE REVENUE IS DISMISSED. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 1 / 11 /2017. - S D / - - S D / - ( H.S.SIDHU ) (PRASHANT MAHARISHI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 1 / 11 /2017 PAGE | 11 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI