CIT vs. KEANE INDIA LTD

In the present case, the Income Tax Appellate Tribunal (?Tribunal?, for short) has given a finding that it is a case of change of opinion and, therefore, the re-assessment proceedings under Section 147 of the Act are bad. We notice that the CIT (Appeals) has recorded that during the course of the appellant proceedings, the assessee had furnished copies of documents as per details given below :- . ?Documents pertaining to original assessment . . . i. Submission dated 5-7-2005 . ii. Submission dated 27-1-2006 . iii. Submission dated 16-3-2006 . iv. Submission dated 22-3-2006 . v. Audited financial statements 23-3-2006 . vi. Order u/s 143(3) dated 27-3-2006 . vii Order u/s 154 dated 01-5-2006 . . . Documents pertaining to reassessment . . . i. Submission dated 8-5-2008 . ii. Submission dated 3-10-2008 . iii. Submission dated 14-10-2008 . iv. Notice and reasons recorded to initiate reassessment proceedings u/s 148 dated 25.3.2008.? . . . . .

The CIT (Appeals) further records that he had seen submissions dated 16.3.2006, 22.3.2006 and 23.3.2006 on the question of deduction under Section 10A of the Act and the computation was specifically dealt with and examined at the time of original assessment. Thereafter, the Assessing Officer wanted to invoke power under Section 154 to rectify the original assessment order on the ground that he had committed a mistake or error at the time of the original assessment. The said proceedings were dropped on the ground that this issue was debatable. The fact, however, remains that the Assessing Officer had dealt with and examined the question of computation of deduction under Section 10A and as then only he would have invoked Section 154 of the Act. .

Learned counsel for the appellant submitted that the legal issue on merit has not been specifically answered or debated upon in the original assessment order. In this case queries and questions regarding computation of deduction under Section 10A were raised by the Assessing Officer and were answered by the assessee at the time of original assessment. Failure or mere absence of finding or averment in the assessment order is not material. The assessment order is authored by the Assessing Officer. The assessee cannot compel and prevail upon the Assessing Officer to write the order in a particular manner. In CIT vs. Eicher Ltd. (2007) 294 ITR 310 (Del), it was held as under: - . ??16. Applying the principles laid down by the Full Bench of this Court as well as the observations of the Punjab and Haryana High Court, we find that if the entire material had been placed by the assessed before the Assessing Officer at the time when the original assessment was made and the Assessing Officer applied his mind to that material and accepted the view canvassed by the assessed, then merely because he did not express this in the assessment order, that by itself would not give him a ground . to conclude that income has escaped assessment and, Therefore, the assessment needed to be reopened. On the other hand, if the Assessing Officer did not apply his mind and committed a lapse, there is no reason why the assessed should be made to suffer the consequences of that lapse. .

In so far as the present appeal is concerned, we find that the assessed had placed all the material before the Assessing Officer and where there was a doubt, even that was clarified by the assessed in its letter dated 8th November, 1995. If the Assessing Officer, while passing the original assessment order, chose not to give any finding in this regard, that cannot give him or his successor in office a reason to reopen the assessment of the assessed or to contend that because the facts were not considered in the assessment order, a full and true disclosure was not made. Since the facts were before the Assessing Officer at the time of framing the original assessment, and later a different view was taken by him or his successor on the same facts, it clearly amounts to a change of opinion. This cannot form the basis for permitting the Assessing Officer or his successor to reopen the assessment of the assessed?? .

In view of the aforesaid position, we dismiss the appeal on the ground that it is a clear case of change of opinion. We note that we are not examining the question of computation of deduction under Section 10A of the Act on merits in this appeal. . . . . . SANJIV KHANNA, J. . . . . . . . R.V.EASWAR, J. . APRIL 20, 2012 . ?AA? . $ 48 .