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TMI Blog2011 (7) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... f opinion. Hence, the question of change of opinion, does not arise - As in the case of Supreme Court in Asstt. CIT v. Rajesh Jhaveri Stock Brokers P. Ltd.[2007 -TMI - 6563 - SUPREME Court] prima facie adjustment under Section 143(1)(a) (now deleted), is no assessment - "reason to believe" that some income has escaped assessment i.e. Assessing Officer has cause or justification - relevant material on which a reasonable person could have formed a requisite belief, whether the materials would conclusively prove the escapement is not the concern at that stage - assessee was unable to demonstrate that conclusion of the Tribunal was against law in any manner - no merit in the appeal and the same is accordingly dismissed. - IT Appeal No. 869 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r judgments? 3. Whether on the facts and in the circumstances of the case, the Tribunal was justified in confirming the very issuance of notice u/s 148 of the Income Tax Act, 1961 by the authorities below, as valid without appreciating the fact and the trite law that there was no concealment or wrong claim of deduction by the appellant rather it was as per law applicable on the date of filing of the Income Tax Return? 4. Whether on the facts and in the circumstances of the case, the Tribunal was justified in confirming the very issuance of notice u/s 148 of the Income Tax Act, 1961 by the authorities below, as valid without appreciating the fact and the trite law that there was no concealment or wrong claim of deduction by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Commissioner of Income Tax (Appeals) [for short "the CIT(A)"], was dismissed vide order dated 11.5.2009. 4. The appellant-assessee filed appeal before the Tribunal challenging the action of the assessing officer in re-opening of the assessment under Sections 147/148 of the Act, which was rejected vide order dated 16.10.2009. 5. This is how the assessee has preferred the instant appeal. 6. We have heard learned counsel for the appellant and perused the record. 7. The first substantial question of law claimed by the assessee relates to the validity of proceedings under Section 148 and the consequential order passed under Section 143(3) in the absence of proper service of such notice under Section 148 of the Act. 8. It would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, where an assessee appears in any proceedings or cooperates in any enquiry relating to assessment or reassessment proceedings, it shall be presumed that the assessee has been validly served and it shall not be open to the assessee to object that the notice was not served upon him or was not served in time or was served upon him in an improper manner. However, an exception to the aforesaid presumption has been made in a case where such objection has been raised before completion of assessment or reassessment. The provision has been made effective from 1.4.2008 and therefore, shall apply to all pending proceedings. The Central Board of Direct Taxes issued circular No.1 of 2009 dated 27th March, 2009 (2009) 310 ITR (St.) 42 giving explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as intimation, which indicates refundable or payable amount. The A.O. is not competent to make any enquiry under such summary scheme as Govt. of India has reposed full faith in the assessee and introduced the said Scheme. Therefore, to contend that there is change of opinion, in such circumstances, is incomprehensible. In our considered view, change of opinion, presupposes existence of opinion. So, in the summary scheme, at the time of processing the return u/s 143(1) of the Act, there is no formation of opinion. Hence, the question of change of opinion, does not arise. Therefore, the contention that the case has been reopened "on change of opinion" is patently erroneous and contrary to the statutory provisions contained under Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer has cause or justification to know or suppose that income had escaped assessment it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the assessing officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers as observed by the Supreme Court in Central Provinces Manganese Ore Co.Lt. ITO (1991) 191 ITR 662, for initiation of action under Section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential. At that stage, the final o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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