KALYAN JYOTI SENGUPTA,J. - (1.) This appeal is against the judgment and order of the learned Tribunal dated 22 July 2011 in relation to the assessment year 2005-06 on the following suggested questions of law;- (i) Whether on the facts and in the circumstances of the case the Income Tax, Appellate Tribunal erred in law in quashing the re-assessment proceeding initiated by the Assessing Officer under Section 147 of the Income Tax Act, 1961? (ii) Whether on the facts and in the circumstances of the case the Income Tax, Appellate Tribunal erred in law in deleting the disallowance of Rs. 1.27 crore U/s.40(a)(ia) of the Income Tax Act, 1961 for alleged contravention of 194C of the Income Tax Act, 1961 ? (iii) Whether the impugned order is bad, arbitrary, illegal perverse and the same is nothing but a total non-application of mind of the concerned respondent and the same is liable to be set aside and/or quashed ?
(2.) We have heard Mr. Dudhoria. We have gone through the impugned judgment and order of the learned Tribunal. It appears to us that learned Tribunal only followed the decision rendered in the case of (Cit v. Kelvinator of India Ltd.) reported in (2002) 256 ITR 1 (Del.)(FB) but also the Supreme Court decision in case of (Cit v. Kelvinator of India Ltd.) (2010) 320 ITR 561 (SC).
(3.) After considering the said judgment Tribunal came to a conclusion the issue covered by the aforesaid two decisions. For better appreciation of this matter relevant portion of the judgment of the learned Tribunal is reproduced as hereunder;- "After the amendment, the Assessing Officer has to have reason to believe that income has escaped assessment, but this does not imply that the Assessing Officer can reopen an assessment on mere change of opinion. The concept of 'change of opinion' must be treated as an in?built test to check the abuse of power. Hence, after April 1, 1989, the Assessing Officer has power to reopen an assessment, provided there is tangible material to come to the conclusion that there was escapement of income from assessment. Reason must have a link with the formation of belief and affirmed the decision of Hon'ble Delhi High Court.";