Lack of fresh tangible material invalidates reopening when details already given in regular assessment

ACIT Vs Sahyog Infrastructure Pvt. Ltd (ITAT Delhi)

Based on the above reasons recorded, notice under Section 148 of the act was issued to the assessee on 25th of June, 2013. From the above reasons recorded it is evident that all these documents were available with the ld. Assessing Officer at the time of making original assessment under Section 143(3) of the Act. Assessing Officer asked for the detailed explanation of the assessee on these documents during the course of original assessment. Assessee also submitted its explanation in the original assessment proceedings and based on these documents assessee also surrendered certain income during the course of original assessment. The ld. Assessing Officer accepted the explanation of the assessee, passed the original assessment order under Section 143(3) of the Act. On the basis of the above, it is abundantly clear that the ld. Assessing Officer applied his mind on the same set of documents which were examined by him during the course of original assessment proceedings. Therefore it is evident that there is absence of any tangible material coming into his possession of the LD AO after passing of the original assessment order. It is imperative to re-open the case of the assessee that there has to be fresh tangible material in the possession of the Assessing Officer which was not available during the course of original assessment order. Otherwise the ld. Assessing Officer does not have power to re-open the case of the assessee on same material, when the original assessment was made under Section 143(3) of the Act on the same set of documents. The ld. DR also could not show us that what was the fresh tangible material coming into the possession of the Assessing Officer after completion of the assessment. In view of this, case of the assessee is squarely covered in its favour by the decision of the Hon’ble Supreme Court in the case of Kelvinator of India (supra). Though ld. CIT (Appeals) also mentioned that the information based on which the case of the assessee is re-opened was found during the course of survey, but he upheld reopening of assessment. In view of this, we hold that the ld. CIT (Appeals) has incorrectly upheld the action of the ld. Assessing Officer in re-opening of the assessment. Therefore, we allow the Cross Objection of the assessee on this score

FULL TEXT OF THE ORDER OF ITAT DELHI

1. This appeal is filed by the ld. ACIT, Circle 22 (1), New Delhi, against the order passed by the Commissioner of Income Tax (Appeals)–8, New Delhi, dated 25.05.20 15 for assessment year 2009-10 raising following grounds of appeal:-

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