In absence of new facts reopening of already examined issue was invalid

Mina Kumari Sahoo Vs ITO (ITAT Cuttack)

As observed by Hon’ble Supreme Court in the case of CIT Vs Kelvinator of India Ltd (320 ITR 561), one has to give a schematic interpretation to the words “reason to believe” failing which, section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of “mere change of opinion”, which cannot be per se reason to reopen. A reassessment has to be based on fulfilment of certain pre-condition and if the concept of “change of opinion” is removed, as was contended on behalf of the Department before Hon’ble Supreme Court, in the garb of re-opening the assessment, review would take place which is not permissible under scheme of reassessment under the Income Tax Act. The Hon’ble Supreme Court have observed that “One must treat the concept of “change of opinion” as an in-built test to check abuse of power by the Assessing Officer” and, therefore, even after 1^st April 1989, Assessing Officer has power to reopen, provided there is “tangible material” to come to the conclusion that there is escapement of income from assessment”.  As regards the credit of Rs.87,17,806/- in the bank, in the assessment proceedings u/s of the Act, the Assessing Officer has taken into consideration the facts and estimated the profit taking into deposits in the bank accounts. Thereafter, there were no new facts before the Assessing Officer which could justify the reopening. On these facts, it was nothing more than change of mind by the Assessing Officer, and a reopening of assessment on the basis of change of opinion, in view of Hon’ble Supreme Court’s judgment in Kelvinator’s case (supra), is not permissible in law.

FULL TEXT OF THE ITAT JUDGEMENT

This is an appeal filed by the assessee against the order of the CIT(A),1, Bhubaneswar dated 16.11.2015 for the assessment year 2009­2010.

2. The assessee has filed additional revised ground, which reads as under:

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