M/s. Modipon Ltd., Modinagar v. Dy. CIT, New Delhi

ITA 3492/DEL/2008 | 2001-2002
Pronouncement Date: 26-03-2010 | Result: Allowed

Appeal Details

RSA Number 349220114 RSA 2008
Bench Delhi
Appeal Number ITA 3492/DEL/2008
Duration Of Justice 1 year(s) 4 month(s)
Appellant M/s. Modipon Ltd., Modinagar
Respondent Dy. CIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 26-03-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 26-03-2010
Date Of Final Hearing 10-03-2010
Next Hearing Date 10-03-2010
Assessment Year 2001-2002
Appeal Filed On 25-11-2008
Judgment Text
I.T.A. NO.3492 /DEL/08 1/9 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E NEW DELHI) BEFORE SHRI RP. TOLANI JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER I.T.A. NO. 3492/DEL/2008 ASSESSMENT YEAR : 2001-02 M/S MODIPON LTD. DCIT MODINAGAR. V. CIRCLE-5(1) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. AGARWAL ADVOCATE. RESPONDENT BY : SHRI SANJAY KUMAR SR. DR. ORDER PER A.K. GARODIA AM: THIS IS AN ASSESSEE'S APPEAL DIRECTED AGAINST THE O RDER OF LD CIT(A)-VIII NEW DELHI DATED 25.9.2008 FOR ASSESSMENT YEAR 2001-02. 2. GROUND NO.1 TO 8 REGARDING CHALLENGING THE VALID ITY RE-ASSESSMENT PROCEEDINGS WHICH READ AS UNDER:- 1. THAT THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-VIII NEW DELHI DATED 25.09.2008 IS WRONG ON FACTS AND BAD IN LAW. 2. THAT THE COMMISSIONER (APPEALS) ERRED IN HOLDING THAT THE INITIATION OF THE REASSESSMENT PROCEEDINGS UNDER SECTION 148 OF THE A CT WAS VALID. HE FAILED TO APPRECIATE THAT THE ASSESSING OFFICER HAD NO JURISD ICTION COMPETENCE AND/OR AUTHORITY TO INITIATE THE REASSESSMENT PROCEEDINGS; 3. THAT THE COMMISSIONER (APPEALS) FAILED TO APPREC IATE THAT THE PROVISIONS OF SECTION 147 OF THE ACT WERE NOT APPLICABLE; . I.T.A. NO.3492/DEL/08 2/9 4. THAT THE COMMISSIONER (APPEALS) FAILED TO APPREC IATE THAT WAS NO REASON JUSTIFYING THE REOPENING OF THE ASSESSMENT; 5. THE COMMISSIONER (APPEALS) FAILED TO APPRECIATE THAT THERE WAS NO FAILURE TO DISCLOSE FULLY AND TRULY ALL THE MATERIAL FACTS; 6. THAT THE COMMISSIONER (APPEALS) ERRED IN HOLDING THAT THE ASSESSMENT WAS REOPENED WITHIN 4 YEARS FROM THE END OF THE ASSESSM ENT YEAR AND AS SUCH THE FIRST PROVISO TO SECTION 147 OF THE ACT WAS NOT APP LICABLE; 7. THAT THE COMMISSIONER (APPEALS) FAILED TO APPREC IATE THAT IT WAS A CASE OF CHANGE OF OPINION; 8. THAT THE COMMISSIONER(APPEALS) FAILED TO APPRECI ATE THAT THE REASSESSMENT PROCEEDINGS WERE VOID ILLEGAL AND INVALID; 3. BRIEF FACTS OF THE CASE ARE THAT IN THE PRESENT YEAR RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 31.10.2001 DECLARING LOSS OF RS.175 .90 LAKHS AND THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER U/S 143(3) VIDE ORDER DATED 30.1.2004 AT THE LOSS OF RS.103.63 LAKHS. THEREAFTER THE ASSESSING OFFICER ISSUED NOTICE U/S 148 DATED 21.7.2006. BEFORE LD CIT(A) THE ASSESSEE HAS CHALL ENGED THE VALIDITY OF RE-ASSESSMENT PROCEEDINGS. IT IS NOTED BY LD CIT(A) IN PARA NO.2. 3.3 OF HIS ORDER THAT THE REASONS WERE RECORDED FOR REOPENING THE ASSESSMENT ON 20.7.2005 AND THEREFORE THE CASE IS COVERED BY THE MAIN SECTION 147 AND NOT BY THE PROVISO TO S ECTION 147 OF THE ACT. IT WAS HELD BY HIM THAT THE ASPECT OF CHANGE OF OPINION AS CONTEND ED BY THE ASSESSEE DOES NOT SURVIVE BECAUSE AS PER THE AMENDED PROVISION OF SECTION 147 AS PER LD CIT(A) THE ONLY NECESSARY PRE-REQUISITE IS FORMATION OF BELIEF BY R ECORDING REASONS FOR ESCAPEMENT OF INCOME. ON THIS ASPECT LD CIT(A) HAS DECIDED THIS ISSUE AGAINST THE ASSESSEE AND NOW THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. IT IS SUBMITTED BY LD AR OF THE ASSESSEE THAT FO R RE-OPENING THE ASSESSMENT U/S 147 IT IS MUST THAT THE ASSESSING OFFICER MUST HAV E SOME NEW MATERIAL ON RECORD WHICH HAS COME INTO HIS POSSESSION AFTER COMPLETION OF OR IGINAL ASSESSMENT U/S 143(1) OR U/S 143(3) AND IN SUPPORT OF THIS CONTENTION RELOIANCE WAS PLACED BY HIM ON THE JUDGMENT OF . I.T.A. NO.3492/DEL/08 3/9 HON'BLE APEX COURT RENDERED IN THE CASE OF CIT V. K ELVINATOR OF INDIA LTD. AS REPORTED IN 320 ITR 561 (SC). IT IS SUBMITTED BY HIM THAT AS P ER THIS JUDGMENT HON'BLE APEX COURT HAS UPHELD THE JUDGMENT OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT V. KELVINATOR OF INDIA LTD. AS REPORTED IN 256 ITR 1. IT IS SUBMITTED THAT IN THIS CASE IT HAS BEEN HELD BY THE HON'BLE DELHI HIGH COURT THAT RE-A SSESSMENT PROCEEDINGS CANNOT BE INITIATED BY THE ASSESSING OFFICER ON MERE CHANGE O F OPINION. IT IS SUBMITTED THAT IN THE PRESENT CASE THE REASONS RECORDED BY THE ASSESSING OFFICER FOR INITIATING PROCEEDINGS U/S 147 ARE AVAILABLE ON PAGE NO.21 OF THE PAPER BO OK AND IN THE SAME THE ASSESSING OFFICER IS BASING HIS REASONS TO BELIEF ON TAX AUD IT REPORT SUBMITTED BY THE ASSESSEE IN FORM NO. 3CD ALONG WITH THE RETURN OF INCOME WITH R EGARD TO PRIOR PERIOD EXPENSES. WITH REGARD TO PROJECT EXPENSES WRITTEN OFF THE AS SESSING OFFICER HAS REFERRED TO P&L A/C OF THE ASSESSEE AND HENCE BOTH THESE MATERIAL I .E. AUDITED ACCOUNT OF THE ASSESSEE AND THE TAX AUDIT REPORT WERE AVAILABLE WITH THE AS SESSING OFFICER AT THE TIME OF ORIGINAL ASSESSMENT COMPLETED BY HIM U/S 143(3) AND HENCE T HE REOPENING OF ASSESSMENT IS ON MERE CHANGE OF OPINION. IT IS ALSO SUBMITTED BY HI M THAT BEFORE INITIATING THE RE- ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER HAS ISSUED NOTICE TO THE ASSESSEE U/S 154 POINTING OUT ONLY THESE TWO ITEMS I.E. PRIOR PE RIOD EXPENSES OF RS.31.87 LAKHS AND CAPITAL EXPENDITURE OF RS.32 .63 LAKHS DEBITED AS R EVENUE EXPENSES AND SUCH PROCEEDINGS INITIATED BY HIM U/S 154 WERE DROPPED B Y HIM AS PER ORDER DATED 6.10.2005 COPY OF WHICH IS AVAILABLE ON PAGE NO.16 OF THE PAP ER BOOK. IT IS SUBMITTED BY HIM THAT IN THE CASE OF KELVINATOR OF INDIA LTD. (SUPRA) I T WAS HELD BY HON'BLE DELHI HIGH COURT THAT WHAT CANNOT BE DONE DIRECTLY AND CANNOT BE DON E INDIRECTLY ALSO. IT IS SUBMITTED THAT UNDER THESE FACTS RE-ASSESSMENT PROCEEDINGS INITIA TED BY THE ASSESSING OFFICER ARE NOT VALID. 5. AS AGAINST THIS LD DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD AND THE JUDGMENTS CITED BY LD A R OF THE ASSESSEE. FROM THE COPY OF REASONS RECORDED BY THE ASSESSING OFFICER WHICH IS AVAILABLE ON PAGE NO.20 OF THE PAPER BOOK WE FIND THAT THE RE-ASSESSMENT PROCEED INGS WERE INITIATED BY THE ASSESSING OFFICER ON THE BASIS OF TAX AUDIT REPORT FILED BY T HE ASSESSEE IN FORM NO.3 CD AND ON THE BASIS OF INFORMATION AVAILABLE IN THE P&L A/C OF TH E ASSESSEE AND THERE IS NO REFERENCE . I.T.A. NO.3492/DEL/08 4/9 TO ANY NEW MATERIAL BY THE ASSESSING OFFICER WHICH HAS COME INTO HIS POSSESSION AFTER THE COMPLETION OF ORIGINAL ASSESSMENT U/S 143(3) O F THE ACT ON 30.1.2004. WE ALSO FIND THAT BEFORE INITIATING RE-ASSESSMENT PROCEEDINGS O N 21.7.2005 BY ISSUING NOTICE U/S 148 THE ASSESSING OFFICER HAD INITIATED PROCEEDINGS U/S 154 FOR THE SAME TWO REASONS AS PER NOTICE U/S 154 DATED 25.4.2005 AVAILABLE ON PAGE NO .10 OF THE PAPER BOOK. SUCH PROCEEDINGS INITIATED BY HIM U/S 154 WERE DROPPED B Y HIM AS PER ORDER DATED 6.10.2005 AS PER THE ORDER OF THE ASSESSING OFFICER AVAILABLE ON PAGE NO.16 OF THE PAPER BOOK AND HENCE IT IS SEEN THAT ON THE DATE OF INITIATION OF RE-ASSESSMENT PROCEEDINGS BY ISSUING NOTICE U/S 148 ON 21.7.2005 THE PROCEEDINGS INITIA TED BY THE ASSESSING OFFICER U/S 154 WERE INCOMPLETE AND PENDING. UNDER THESE FACTS WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE REGARDING VALIDITY OF RE-ASSESSMENT PROC EEDINGS IS COVERED IN FAVOUR OF THE ASSESSEE BY THE FULL BENCH JUDGMENT OF HON'BLE DELH I HIGH COURT RENDERED IN THE CASE OF CIT V. KELVINATOR OF INDIA LTD. (SUPRA). THE REL EVANT PARA OF THIS JUDGMENT ARE REPRODUCED HEREIN BELOW FROM PAGE NO.13 TO 16 OF 25 6 ITR:- PAGE NO: 0013 THIS HAS BEEN THE SETTLED POSITION IN LAW ALL THROU GH. HOWEVER THE QUESTION WHICH REQUIRES CONSIDERATION IS WHETHER ANY CHANGE IN LAW HAS BEEN BROUGHT ABOUT ON ACCOUNT OF AMENDMENT OF SECTION 147 WITH EFFECT FRO M APRIL 1 1989. IN JINDAL PHOTO FILMS LTD. [1998] 234 ITR 170 (DEL HI) R. C. LAHOTI J. (AS HIS LORDSHIP THEN WAS) OBSERVED (HEADNOTE) : THE POWER TO REOPEN AN ASSESSMENT WAS CONFERRED B Y THE LEGISLATURE NOT WITH THE INTENTION TO ENABLE THE INCOME-TAX OFFICER TO REOPE N THE FINAL DECISION MADE AGAINST THE REVENUE IN RESPECT OF QUESTIONS THAT DIRECTLY A ROSE FOR DECISION IN EARLIER PROCEEDINGS. IF THAT WERE NOT THE LEGAL POSITION IT WOULD RESULT IN PLACING AN UNRESTRICTED POWER OF REVIEW IN THE HANDS OF THE AS SESSING AUTHORITIES DEPENDING ON THEIR CHANGING MOODS. IT WAS FURTHER HELD BY THE BENCH THAT (PAGE 178) : REVERTING BACK TO THE CASE AT HAND IT IS CLEAR F ROM THE REASONS PLACED BY THE ASSESSING OFFICER ON RECORD AS ALSO FROM THE STATEM ENT MADE IN THE COUNTER AFFIDAVIT THAT ALL THAT THE INCOME-TAX OFFICER HAS SAID IS TH AT HE WAS NOT RIGHT IN ALLOWING DEDUCTION UNDER SECTION 80-I BECAUSE HE HAD ALLOWED THE DEDUCTIONS WRONGLY AND . I.T.A. NO.3492/DEL/08 5/9 THEREFORE HE WAS OF THE OPINION THAT THE INCOME HA D ESCAPED ASSESSMENT. THOUGH HE HAS USED THE PHRASE REASON TO BELIEVE IN HIS ORDE R ADMITTEDLY BETWEEN THE DATE OF THE ORDERS OF ASSESSMENT SOUGHT TO BE REOPENED AND THE DATE OF FORMING OF OPINION BY THE INCOME-TAX OFFICER NOTHING NEW HAS HAPPENED. THERE IS NO CHANGE OF LAW. NO NEW MATERIAL HAS COME ON RECORD. NO INFORMATION HAS BE EN RECEIVED. IT IS MERELY A FRESH APPLICATION OF MIND BY THE SAME ASSESSING OFFICER TO THE SAME SET OF FACTS. WHILE PASSING THE ORIGINAL ORDERS OF ASSESSMENT THE ORDE R DATED FEBRUARY 28 1994 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) WAS BEFOR E THE ASSESSING OFFICER. THAT ORDER STANDS TILL TODAY. WHAT THE ASSESSING OFFICER HAS SAID ABOUT THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) WHILE RECORDIN G REASONS UNDER SECTION 147 HE COULD HAVE SAID EVEN IN THE ORIGINAL ORDERS OF ASSE SSMENT. THUS IT IS A CASE OF MERE CHANGE OF OPINION WHICH DOES NOT PROVIDE JURISDICTI ON TO THE ASSESSING OFFICER TO INITIATE PROCEEDINGS UNDER SECTION 147 OF THE ACT. IT IS ALSO EQUALLY WELL SETTLED THAT IF A NOTICE U NDER SECTION 148 HAS BEEN ISSUED WITHOUT THE JURISDICTIONAL FOUNDATION UNDER SECTION 147 BEI NG AVAILABLE TO THE ASSESSING OFFICER THE NOTICE AND THE SUBSEQUENT PROCEEDINGS WILL BE WITHOUT JURISDICTION LIABLE TO BE STRUCK DOWN IN EXERCISE OF WRIT JURISDICTION OF THIS COURT. IF REASON TO BELIEVE BE AVAILABLE THE WRIT COURT WILL NOT EXERCISE ITS PO WER OF JUDICIAL REVIEW TO GO INTO THE SUFFICIENCY OR ADEQUACY OF THE MATERIAL AVAILABLE. HOWEVER THE PRESENT ONE IS NOT A CASE OF TESTING THE SUFFICIENCY OF MATERIAL AVAILA BLE. IT IS A CASE OF ABSENCE OF MATERIAL AND HENCE THE ABSENCE OF JURISDICTION IN THE ASSES SING OFFICER TO INITIATE THE PROCEEDINGS UNDER SECTION 147/148 OF THE ACT. PAGE NO: 0014 THUS THE COURT HELD THAT EVEN UNDER THE NEWLY SUBS TITUTED SECTION 147 WITH EFFECT FROM APRIL 1 1989 AN ASSESSMENT COULD NOT BE REOP ENED ON A MERE CHANGE OF OPINION. YET AGAIN IN FORAMERS CASE [2001] 247 ITR 436 A D IVISION BENCH OF THE ALLAHABAD HIGH COURT HAS HELD THAT IF A NOTICE UNDER SECTION 147/ 148 WAS ISSUED AFTER THE COMING INTO FORCE OF THE AMENDED ACT THE LATTER SHALL BE ATTRACTED. HOWEVER IT IS OBSERVED THAT (PAGE 444) : ALTHOUGH WE ARE OF THE OPINION THAT THE LAW EXIST ING ON THE DATE OF THE IMPUGNED NOTICE UNDER SECTION 147/148 HAS TO BE SEEN YET EV EN IN THE ALTER- NATIVE EVEN IF WE . I.T.A. NO.3492/DEL/08 6/9 ASSUME THAT THE LAW PRIOR TO THE INSERTION OF THE N EW SECTION 147 WILL APPLY EVEN THEN IT WILL MAKE NO DIFFERENCE SINCE EVEN UNDER THE ORIGIN AL SECTION 147 NOTICE FOR REASSESSMENT COULD NOT BE GIVEN ON THE MERE CHANGE OF OPINION AS HELD IN NUMEROUS CASES OF THE SUPREME COURT SOME OF WHICH HAVE BEE N MENTIONED ABOVE. SINCE THE TRIBUNAL IN THE APPEAL RELATING TO THE ASSESSEE-CO MPANY HAD CONSIDERED THE TRIBUNALS EARLIER DECISION IN BOUDIER CHRISTIANS CASE IT WI LL OBVIOUSLY AMOUNT TO MERE CHANGE OF OPINION AND HENCE THE NOTICE UNDER SECTION 147/14 8 WOULD BE ILLEGAL. WE MAY ALSO NOTICE THAT A DIVISION BENCH OF THE GU JARAT HIGH COURT IN GARDEN SILK MILLS PVT. LTD. [1999] 237 ITR 668 WHILE EXPRESSIN G SIMILAR VIEWS OBSERVED (PAGE 674) : THE REASONS RECORDED BY THE ASSESSING OFFICER WHI CH LED TO THE BELIEF ABOUT THE ESCAPEMENT OF ASSESSMENT DISCLOSE THAT THE PRESENT CASE IS NOTHING BUT MERE CHANGE OF OPINION ON THE FACTS WHICH WERE ALREADY BEFORE THE ASSESSING OFFICER WHILE MAKING THE FIRST ASSESSMENT TO WHICH CONSCIOUS APPLICATION OF MIND IS REFLECTED FROM THE PROCEEDINGS AND ALLOWED IN THE COMPUTATION AND WH ICH HAS NOT BEEN DISPUTED BY THE REVENUE. ALTHOUGH THE REFERRING BENCH HAD PRIMA FACIE AGREE D WITH THE DECISION OF THIS COURT IN JINDAL PHOTO FILMS CASE [1998] 234 ITR 170 BUT A DOUBT WAS SOUGHT TO BE RAISED BY THE REVENUE IN VIEW OF A DECISION OF THE GUJARAT HIGH COURT IN PRAFUL CHUNILAL PATELS CASE [1999] 236 ITR 832. THEREFORE LET US NOW CONSIDER THE DECISION OF THE DIVISION BENCH OF THE GUJARAT HIGH COURT IN THE SA ID CASE WHEREIN IT WAS HELD (PAGE 839) : IT WILL THUS BE SEEN THAT IN THE PROCEEDINGS TAKE N UNDER SECTION 147 THE ASSESSING OFFICER MAY MAKE AN ASSESSMENT OR REASSESSMENT OR RECOMPUTATION AS THE CASE MAY BE. THE WORD ASSESS REFERS TO A SITUATION WHERE T HE ASSESSMENT WAS NOT MADE IN THE NORMAL MANNER WHILE THE WORD REASSESS REFERS TO A SITUATION WHERE AN ASSESSMENT IS ALREADY MADE BUT IT IS SOUGHT TO BE REASSESSED ON THE BASIS OF THIS PROVISION. IN CASES WHERE THE ASSESSING OFFICER HAS NOT MADE AN ASSESSMENT OF ANY ITEM OF INCOME CHARGEABLE TO TAX WHILE PASSING THE ASSESSME NT ORDER IN THE RELEVANT ASSESSMENT YEAR IT CANNOT BE SAID THAT SUCH INCOME WAS SUBJECTED TO AN ASSESSMENT. IN . I.T.A. NO.3492/DEL/08 7/9 THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER W OULD ASCERTAIN ON CONSIDERATION OF ALL RELEVANT CIRCUMSTANCES THE AMOUNT OF TAX PAGE NO: 0015 CHARGEABLE TO A GIVEN TAXPAYER. THE WORD ASSESSMEN T WOULD MEAN THE ASCERTAINMENT OF THE AMOUNT OF TAXABLE INCOME AND OF THE TAX PAYA BLE THEREON. IN OTHER WORDS WHERE THERE IS NO ASCERTAINING OF THE AMOUNT OF TAXABLE I NCOME AND THE TAX PAYABLE THEREON IT CAN NEVER BE SAID THAT SUCH INCOME WAS ASSESSED . MERELY BECAUSE DURING THE ASSESSMENT PROCEEDINGS THE RELEVANT MATERIAL WAS O N RECORD OR COULD HAVE BEEN WITH DUE DILIGENCE DISCERNED BY THE ASSESSING OFFICER F OR THE PURPOSE OF ASSESSING A PARTICULAR ITEM OF INCOME CHARGEABLE TO TAX IT CA NNOT BE INFERRED THAT THE ASSESSING OFFICER MUST NECESSARILY HAVE DELIBERATED OVER IT AND TAKEN IT OUT WHILE ASCERTAINING THE TAXABLE INCOME OR THAT HE HAD FORMED ANY OPINI ON IN RESPECT THEREOF. IF LOOKING BACK IT APPEARS TO THE ASSESSING OFFICER (ALBEIT WI THIN FOUR YEARS OF THE END OF THE RELEVANT ASSESSMENT YEAR) THAT A PARTICULAR ITEM EV EN THOUGH REFLECTED ON THE RECORD WAS NOT SUBJECTED TO ASSESSMENT AND WAS LEFT OUT WH ILE WORKING OUT THE TAXABLE INCOME AND THE TAX PAYABLE THEREON I.E. WHILE MAKING THE FINAL ASSESSMENT ORDER THAT WOULD ENABLE HIM TO INITIATE THE PROCEEDINGS IRRESPECTIVE OF THE QUESTION OF NON-DISCLOSURE OF MATERIAL FACTS BY THE ASSESSEE. WE ARE WITH RESPECT UNABLE TO SUBSCRIBE TO THE A FOREMENTIONED VIEW. IF THE CONTENTION OF THE REVENUE IS ACCEPTED THE SAME IN OUR OPINION WOULD CONFER AN ARBITRARY POWER UPON THE ASSESSING OFFICER. THE ASS ESSING OFFICER WHO HAD PASSED THE ORDER OF ASSESSMENT OR EVEN HIS SUCCESSOR OFFICER O NLY ON THE SLIGHTEST PRETEXT OR OTHERWISE WOULD BE ENTITLED TO REOPEN THE PROCEEDIN G. ASSESSMENT PROCEEDINGS MAY BE FURTHERMORE REOPENED MORE THAN ONCE. IT IS NOW TRI TE THAT WHERE TWO INTERPRETATIONS ARE POSSIBLE THAT WHICH FULFILS THE PURPOSE AND O BJECT OF THE ACT SHOULD BE PREFERRED. IT IS A WELL SETTLED PRINCIPLE OF INTERPRETATION O F STATUTE THAT THE ENTIRE STATUTE SHOULD BE READ AS A WHOLE AND THE SAME HAS TO BE CONSIDERED T HEREAFTER CHAPTER BY CHAPTER AND THEN SECTION BY SECTION AND ULTIMATELY WORD BY WORD . IT IS NOT IN DISPUTE THAT THE ASSESSING OFFICER DOES NOT HAVE ANY JURISDICTION TO REVIEW HIS OWN ORDER. HIS JURISDICTION IS CONFINED ONLY TO RECTIFICATION OF M ISTAKES AS CONTAINED IN SECTION 154 OF THE ACT. THE POWER OF RECTIFICATION OF MISTAKE CONF ERRED UPON THE INCOME-TAX OFFICER IS . I.T.A. NO.3492/DEL/08 8/9 CIRCUMSCRIBED BY THE PROVISIONS OF SECTION 154 OF THE ACT. THE SAID POWER CAN BE EXERCISED WHEN THE MISTAKE IS APPARENT. EVEN A MIS TAKE CANNOT BE RECTIFIED WHERE IT MAY BE A MERE POSSIBLE VIEW OR WHERE THE ISSUES AR E DEBATABLE. EVEN THE INCOME-TAX APPELLATE TRIBUNAL HAS LIMITED JURISDICTION UNDER SECTION 254(2) OF THE ACT. THUS WHEN THE ASSESSING OFFICER OR TRIBUNAL HAS CONSIDERED TH E MATTER IN DETAIL AND THE VIEW TAKEN IS A POSSIBLE VIEW THE ORDER CANNOT BE CHANGE D BY WAY OF EXERCISING THE JURISDICTION OF RECTIFICATION OF MISTAKE. IT IS A WELL SETTLED PRINCIPLE OF LAW THAT WHAT CA NNOT BE DONE DIRECTLY CANNOT BE DONE INDIRECTLY. IF THE INCOME-TAX OFFICER DOES NOT POSS ESS THE POWER OF REVIEW HE CANNOT BE PERMITTED TO ACHIEVE THE SAID OBJECT BY TAKING R ECOURSE TO INITIATING A PROCEEDING OF REASSESSMENT OR BY WAY OF RECTIFICATION OF MISTAKE. PAGE NO: 0016 IN A CASE OF THIS NATURE THE REVENUE IS NOT WITHOUT REMEDY. SECTION 263 OF THE ACT EMPOWERS THE COMMISSIONER TO REVIEW AN ORDER WHICH IS PREJUDICIAL TO THE REVENUE. 7. THIS JUDGMENT OF HON'BLE DELHI HIGH COURT HAS BE EN UPHELD AND AFFIRMED BY THE HON'BLE APEX COURT AS PER DECISION REPORTED IN 320 ITR 561. SINCE IN THE PRESENT CASE ALSO THE REOPENING WAS ON MERE CHANGE OF OPINION O N THE BASIS OF MATERIAL WHICH WAS ALREADY AVAILABLE ON RECORD AT THE TIME OF COMPLETI ON OF THE ORIGINAL ASSESSMENT WE FEEL THAT THE REOPENING IS ON MERE CHANGE OF OPINION IN THE PRESENT CASE WHICH IS NOT VALID AS PER THIS JUDGMENT OF HON'BLE DELHI HIGH COURT AND H ENCE WE QUASH THE RE-ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER. 8. IN VIEW OF OUR DECISION WITH REGARD TO VALIDITY OF THE RE-ASSESSMENT PROCEEDINGS OTHER GROUNDS OF THE ASSESSEE ON MERIT OF ADDITIONS DO NOT CALL FOR ANY ADJUDICATION. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. 10. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH MAR CH 2010. SD/- SD/- (R.P. TOLANI) (A.K. GA RODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 26.3.2010. HMS . I.T.A. NO.3492/DEL/08 9/9 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)- NEW DELHI. 5. THE DR ITAT LOKNAYAK BHAWAN KHAN MARKET NEW DELHI. TRUE COPY. BY ORDER (ITAT NEW DELHI).