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TMI Blog2016 (8) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... IL APPLICATION NO. 2854 of 2013 - - - Dated:- 19-7-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MR B S SOPARKAR, ADVOCATE FOR THE RESPONDENT : MRS MAUNA M BHATT, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE A.J. SHASTRI) The petition is directed against issuance of notice under section 148 of the Income Tax Act, 1961 ( the Act for short) dated 28.3.2012. The case of the petitioner is that the petitioner is a partnership firm. Original return of income was filed by the petitioner alongwith attached documents under section 139(1) of the Act for the assessment year 2005-2006 on 28.10.2005 declaring total income of ₹ 18,09,040/-. Alongwith with said return under section 139 of the Act, the petitioner had attached several documents and furnished particulars which are reflected on page-3 of the petition memo. It was also specifically pointed out by the petitioner about the issue pertaining to brokerage and commission during the hearing. The petitioner's return came to be selected for scrutiny and after scrutiny under section 143(3) of the Act, assessment order came to be passed on 27.12.2007. By that time, on 20.2.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department and therefore, the same is impermissible. It was also specifically pointed out that the reasons which are supplied for issuance of reopening notice, are based on proper verification of the record which was available on hand and therefore, the power to reopen cannot be exercised to review of to reform an opinion. Learned counsel for the petitioner therefore, requested the Court not to allow such reopening and that too after a period of more than four years. His main limb of argument is that after a period of four years, the authority has only to look to the aspect whether the assessee has fully and truly disclosed all material at the time of assessment or not. In the background of these facts, he submitted that such exercise of power on the part of the respondent authority should be quashed. He has also drawn the attention of the Court that from the background of the facts, even on the basis of available material on record, the provisions of section 195 of the Act are not attracted and althroughout it is not the case that reopening is on account of some concealment of material and therefore, requested the Court not to allow such exercise to be taken on part of the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for re-opening the assessment within the meaning of section 147 of the Act. Issue notice under section 148 of the Act. 5. From the aforesaid material on record, it appears that attempt on part of the revenue is to reopen the assessment after scrutiny assessment after a period of more than four years. In view of the settled position of law, in absence of any circumstances about non-disclosure of true and full material on part of the assessee, reopening is not permitted. In the present case, in absence of such contingency as is reflected from the record of the case, it is not open for the respondent authority to exercise power of reopening of assessment which had already become final. While submitting that the petitioner had truly and fully disclosed each and every material at the relevant point of time, learned counsel for the petitioner has drawn attention of the Court about the amount admissible under section 40A of the Act. He has drawn attention to form 3CT on page 32 and clause F in tabular form which indicates that the amount has already mentioned which is inadmissible under section 40A of the Act. Similarly, on page 41 in Annexure A , a specific figure has also been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of scrutiny assessment as well as at the time of hearing submitted vide communicated attaching several annexures as stated above. On the basis of this material, simply because the authority has a different opinion, re-opening and that too, after a period of four years is not permissible. In the aforesaid decision, this Court has considered the decision in the case of Kewlvinator India Ltd. and has not permitted reassessment on change of opinion. Para-13 of the said decision is quoted hereinbelow: 13. Heavy reliance is placed on the decision in case of CIT v. Kelvinator India Ltd. Reported in (2010) 320 ITR 561 by the petitioner to insist that the Assessing Officer has no right to reopen on changing his mind. Not only there is absence of element of non-disclosure of relevant material fully and truly necessary for assessment but both the grounds appear to have been on scrutiny, finalised. 7. Learned counsel for the petitioner has further drawn the attention of this Court to another decision of this Court rendered in the case of Prasad Koch Technic Pvt. Ltd. Vs Assistant Commissioner of Income (OSD)-Tax in Special Civil Application No.16074 of 2011 dated 2.12.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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