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Steel Authority Of India Ltd., Gm (Taxation) 4th Floor, Ispat Bhavan, Lodi Road, New Delhi Vs. Dcit, Circle 9(1), New Delhi
September, 11th 2015
                                                               ITA NO. 2154/DEL/2011

                       DELHI BENCH "G", NEW DELHI

                    I.T.A. NO. 2154/DEL/2011
                           A.Y. : 2003-04
LTD.,                                VS. NEW DELHI
(PAN: AAACS70622F)

(APPELLANT)                                 (RESPONDENT)

            Assessee by               :    Shri MP Rastogi, Adv. &
                                           Shri P.N. Shastri, Adv.
           Department by              :    Sh. Sujit Kumar, Sr. DR

                      Date of Hearing : 18-08-2015
                      Date of Order       : 10-09-2015
     The     Appeal filed by the Assessee emanate out of the Order
dated 23.2.2011 passed by the Ld. CIT(A)-XII, New Delhi relevant to
assessment year 2003-04.

2.   The following grounds have been raised in the Assessee's

                   "1. The CIT(A) has erred in confirming the reopening
                        of assessment u/s. 147 / 148 of the I.T. Act on
                        the basis of a change of opinion prompted on
                        the basis of audit objections.

                                                          ITA NO. 2154/DEL/2011

                2.     The CIT(A) has erred in confirming the addition
                       made by the AO by treating the Fiber Optic
                       Computer Networking as an ordinary asset
                       instead of being a part of the Computer
                       Systems and consequently disallowing Rs.
                       75.05 lacs of depreciation.

                3.     That the above grounds are independent and
                       without prejudice to each other.

                4.     That the appellant seeks leave to add, amend,
                       alter, abandon or substitute any of the above
                       grounds at the time of hearing of appeal.

3.    The brief facts of the case are that Assessee filed return of
income on 13.11.2003 declaring total income at Rs. 6032 lakhs. The
assessment order u/s. 143(3) of the      Income Tax Act, 1961 was
passed on 30.3.2006.     Thereafter the case was reopened u/s. 148
on 6.7.2007 and in   response to this notice assessee filed return of
income on 7.9.2007.        The assessee also sought reason                for
reopening on the same day. The reasons were supplied to the A.R.
of the assessee and also the objections filed by the assessee
against the reopening were disposed off on 22.10.2008. Notices u/s.
143(2) & 142(1) were issued and served upon the assessee and in
response thereof A.R. of the assessee company attended the
proceedings from time to time and filed the details, as sought by
the AO. Thereafter, the AO assessed the income u/s 143(3) of the
I.T. Act.

4.    In this appeal, the assessee has mainly challenged the
reopening assessment u/s. 147/148 of the I.T. Act on the basis of a
change of opinion prompted on the basis of audit objections.             Ld.
Counsel of the assessee at the threshold stated that the similar and

                                                             ITA NO. 2154/DEL/2011

identical issue has been decided by the ITAT in assessee own case
in the year 1981-82, 1987-88, 1988-89 & 1989-90 and requested
that the same may be followed in the present case and decide the
issue in dispute accordingly. Ld. Counsel for the assessee further
stated that notwithstanding the fact that the reassessment for the
year under consideration was initiated within 4 years from the end
of the relevant asstt. year, there is no          change of opinion

5.     On the other hand, Ld. DR contended that the reopening in
question is valid, since it was done on the basis of an audit

6.     We have heard both the counsel and perused the records.

After considering the position with regard to the issue of reopening,

we find that all the questions / reasons recorded by the AO are

covered by the ITAT earlier order dated 25.8.2003, in assessee's

own case for assessment year 1981-82.          Like in that case, the

assessee had made full and true disclosure during the original

assessment proceedings with regard to these issues. We are of the

view that reopening had been done merely on change of opinion in

as much as that in the original assessment made u/s. 143(3) of the

I.T. Act, the AO had apparently       applied his mind and had raised

queries with regard to the items which have been identified by the

AO in this notice u/s. 147/148 of the Income Tax Act. We also find

that   AO has no fresh material to form his        opinion      regarding

escapement of assessment and he has also not found any tangible

                                                           ITA NO. 2154/DEL/2011

material to record the reasons for reopening of the assessment of

the assessee.      It is merely a change of opinion which is not

permissible under the law as well as according to the various

decisions rendered by the     Hon'ble Supreme Court of India in the

case of CIT vs. Kelvinator of India Limited in Appeal Nos. 2009-2011

of 2003 reported in 320 ITR 561 and     Commissioner of Income Tax

vs. Usha International Ltd. [2012] 348 ITR 485 (Delhi) [Full Bench]

the reassessment is invalid     on the part of the AO and also on

confirming the same on the part of the Ld. CIT(A).

6.1   In view of the aforesaid facts and circumstances, as explained
above and respectfully following the precedent in the assessee's
own case in the asstt. years 1981-82, 1987-88, 1988-89 & 1989-90
and also respectfully following the law laid down by the Hon'ble
Supreme Court of India and Full Bench of the Hon'ble High Court of
Delhi, we are of the view that both the authorities below have gone
wrong in deciding the reopening as valid. However, in view of the
aforesaid discussions and the precedents relied upon, as aforesaid
it is established that that in the present case the issue reopening of
assessment is incorrect and invalid. Therefore, we quash the orders
of the authorities below on this legal issue and decide the same in
favor of the assessee.

6.2   Since we have already quashed the reassessment proceedings

as aforesaid, raised in the Assessee's Appeal,       in our considered

opinion, there is no need to adjudicate the issues on merits.

                                                          ITA NO. 2154/DEL/2011

7.    In the result, the appeal filed by the Assessee stand allowed.

      Order pronounced in the Open Court on 10/9/2015.

      Sd/-                                              Sd/-

[O.P. KANT]                                       [H.S. SIDHU]
ACCOUNTANT MEMBER                              JUDICIAL MEMBER

Date 10/9/2015
Copy forwarded to: -
1.    Appellant -

2.    Respondent -
3.    CIT
4.    CIT (A)
5.    DR, ITAT         TRUE COPY
                                                  By Order,

                                                 Assistant Registrar,
                                                 ITAT, Delhi Benches

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