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TMI Blog2017 (2) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... to be mere change of opinion. Considering the decision in the case of Kelvinator of India Ltd. (2010 (1) TMI 11 - SUPREME COURT OF INDIA ) merely on the basis of the change of opinion by the subsequent Assessing Officer / Assessing Officer reopening of the assessment is not permissible. - Decided in favour of assessee - SPECIAL CIVIL APPLICATION NO. 21452 of 2016 - - - Dated:- 31-1-2017 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE PETITIONER : MR RK PATEL, ADVOCATE with MR DARSHAN R PATEL, ADVOCATE FOR THE RESPONDENT : MR SUDHIR M MEHTA, ADVOCATE (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] RULE. Shri Sudhir Mehta, learned Counsel waives service of notice of rule on behalf of the respondent. [2.0] In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present petition is taken up for final hearing today. [3.0] By way of this petition under Article 226 of the Constitution of India the petitioner assessee has prayed for an appropriate writ, order or direction to quash and set aside the impugned notice dated 30/03/2016 issued by the respondent Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of imported rough and cut and polished diamonds by the Indian importers with nexus with Singapore based exporters. In this respect, the DRI authorities have issued show cause notice to assessee company and other its accompliance. In the assessee s case, as per the imported documents the declared total value of the imported rough diamonds i.e. six consignment of diamonds in is US$ 21750437. However, subsequently, the assessee Company had amended the declared value of the six consignments of rough diamond at US$ 83512.60 only. Thus, it is clear evident on record of over invoicing the purchase value of the imported goods with a view to siphon off huge foreign exchange to park money abroad for unlawful activities. 3. The over invoicing of purchase value of the goods, in the instant case comes to in US$ 21666925 (21750437 83512.60) value in Indian currency comes to ₹ 107,35,96,133/- (considering the exchange rate @ ₹ 49.55 per US$ as on 22/11/2008). I have perused and noted the content of the show-cause notice issued by the DRI authority. 4. On verification of the relevant assessment records for the AY 2009-10 vis-a-vis the facts drawn by the DDIT (Inv.), Unit- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee in not disclosing true and correct facts. It is submitted that the assumption of jurisdiction by the Assessing Officer to reopen the assessment beyond four years is bad in law and contrary to the provisions of Section 147 of the Act. It is further submitted that even otherwise the entire issue with respect to the transactions for which now the Assessing Officer has reopened the assessment was in fact gone into by the Assessing Officer while framing the the scrutiny assessment under Section 143(3) of the Act. It is submitted that as such on the basis of the show cause notice issued by the DRI, on the basis of which now the assessment is sought to be reopened, original assessment was taken under scrutiny and after detailed inquiry the Assessing Officer thereafter framed the scrutiny assessment under Section 143(3) of the Act. It is submitted that therefore the subsequent reassessment on the basis of the same material is nothing but change of opinion, and therefore, the reassessment proceedings is not permissible. In support of his above submissions, he has heavily relied upon the decision of the Hon ble Supreme Court in the case of Commissioner of Income-tax Vs. Kelvinator of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount chargeable to tax has escaped the assessment, the Assessing Officer is justified in reopening the assessment. [8.0] From the reasons recorded, it appears that on the basis of the information received from the DDIT (Investigation) Unit I, Surat, show cause notice has been issued by the DRI with respect to six consignments of imported rough diamonds, which was alleged to have been purchased by the petitioner assessee and according to DRI there was over invoicing of the purchase goods. According to the Assessing Officer, so mentioned in the reasons recorded, the petitioner assessee while filing the return of income did not disclose the show cause notice issued by the DRI with respect to the seizure of six consignments of rough diamonds by DRI, and therefore, the petitioner assessee did not furnish truly and fully all material required before the Assessing Officer for the assessment proceedings. However, from the material on record, it appears that it is not in dispute that on the basis of the information supplied /given by DRI who issued the show cause notice with respect to six consignments of the imported rough diamonds, more particularly, with respect to over i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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