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TMI Blog2015 (4) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... 54 of the Act by the issuance of a notice dated 24.3.2011. However, the same were dropped holding that it was a debatable issue which would be apparent from the affidavit filed by D.C.I.T. Dated 20.11.2014 in the present case. The impugned notice under Sections 147 and 148, therefore, are clearly based only on change of opinion which is not permissible. - Decided in favour of assessee. - CWP No. 23887 of 2011 - - - Dated:- 10-3-2015 - S. J. Vazifdar, Acting Chief Justice And G. S. Sandhawalia,JJ. For the Petitioner : Mr. Rohit Jain, Advocate For the Respondent : Mr. Tajinder Joshi, Advocate ORDER S. J. Vazifdar, Acting Chief Justice (Oral) Rule. Rule returnable forthwith and heard finally. 2. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been shown as a negative amount at ₹ 1145902/-. No explanation of the assessee is available on record with regard to the nature of this credit amount. Prima facie it appears to be under assessment of income as the assessee company itself is mentioning it as exchange profit. 4. This is clear case of the notice having been issued only on a change of opinion or rather a difference of opinion. The entire facts pertaining to the issue had been disclosed on each and every stage of the proceedings. Indeed the material in this regard was sought by the Transfer Pricing Officer (TPO) as well as by the Assessing Officer (AO). The relevant material was furnished by the petitioner. The assessment order was clearly passed after takin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayments to the Mitsubishi Electric Corporation, Japan of the sum of ₹ 87,41,302/-. The petitioner also forwarded to the Assessing Officer and Transfer Pricing Officer the tax audit report for the year 31.3.2006 which referred to the payment for Royalty and technical fees to Mitsubishi Electric Corporation, Japan. 8. Details were furnished in Enclosure VI thereto which referred to the payment of Royalty and technical fees to Mitsubishi Electric Corporation, Japan. The payment of Royalty and Technical Assistance Fees was also referred to in detail in Enclosure 13. This Enclosure was filed before the Assessing Officer and before the Transfer Pricing Officer. 9. Thus, the information regarding the payments and technical fees w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 173) 24. Detail of month-wise TDS deducted and deposited alongwith copy of TDS/TCS returns. (page 179-200). 12. It is established, therefore, that the Assessing Officer and Transfer Pricing Officer were not only aware of the payment of Royalty but had taken the same into consideration at every stage. The Assessing Officer infact expressly called for the said information. It cannot be held, therefore, that the Assessing Officer was not aware of the Royalty and had not taken the same into consideration before passing the assessment order under Section 143 of the Act. It is also important to note that proceedings had been initiated under Section 154 of the Act by the issuance of a notice dated 24.3.2011. However, the same were dropped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer has no power to review; he has the power to reassess. But assessment has to be based on fulfillment of certain preconditions and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place. One must treat the concept of change of opinion as an inbuilt test to check abuse of power by the Assessing Officer. Hence, after Ist April, 1989, the Assessing Officer has power to reopen, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to section 147 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, remain the same. 15. The learned counsel appearing on behalf of the respondents relied upon a judgment of a Division Bench of this Court dated 2.4.2013 in Trident Limited Vs. Union of India and others CWP No.22119 of 2011 to contend that as an aspect had not been referred to in the assessment order, it cannot be said that relevant facts were taken into consideration by the Assessing Officer. 16. The judgment is clearly distinguishable. In that case the learned Judges found that it could not be held at that stage that the assessment order had disclosed all the facts and that the Assessment Officer was satisfied with the explanation submitted. The decision, therefore, was based on the facts of that case. The Division Bench noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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