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TMI Blog2019 (8) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year. Under the circumstances, the conditions stipulated under first proviso to section 147 are not satisfied and therefore, on the aforesaid ground alone, the impugned notice deserves to be quashed and set aside. In view of the above and applying the ratio laid down in the decisions referred and for the reasons stated above, present petition succeeds and the impugned notice dated 27/3/2018 issued by the respondent u/s 148 is held to be illegal, without jurisdiction, bad in law and deserves to be quashed and set aside - R/SPECIAL CIVIL APPLICATION NO. 16135 of 2018 - - - Dated:- 5-8-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Petitioner (s) : MR SUDHIR M MEHTA (2058) AND MS SHAILEE S MEHTA (5873) For The Respondent (s) : MRS MAUNA M BHATT (174) ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE A.C. RAO) 1.00. RULE , returnable forthwith. Ms.Mauna Bhatt, learned Senior Standing Counsel appearing for the revenue waives the service of notice of the rule on behalf of the respondents. 1.01. In the facts and circumstances of the case and with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady placed on record of the A.O. and the assessment order was passed under section 143(3) of the Act on 13/7/2015 and therefore, not it is not open for the A.O. to issue Notice under section 148 of the Act stating that income had escaped for the A.Y. 2013-14 and asking the petitioner to file the return. 4.01. Mr. Sudhir Mehta, further submitted that during the course of regular assessment proceedings, detailed inquiry was conducted and the petitioner had filed reply and during the course of the inquiry, the petitioner disclosed the fact of sale of the property and had also submitted copy of the sale deed and computation of total income for the A.Y. 2014-15 wherein the income from capital gain has been calculated on the basis of the amount received on 26/9/2013 and possession was handed over to the purchaser. It is contended that thus, during the inquiry carried out during the original assessment, the petitioner had disclosed the fact of sale of the property and the A.O. was aware about the same and therefore, the notice u/s 148 of the Act on the basis of on verification of records is nothing but a chance of opinion, which is not permissible. In support of the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in [2018] 91 taxmann.com 342 (Gujarat) , Mr.Mehta, submitted that reopening of assessment being based on a mere change of opinion, the assumption of jurisdiction on the part of the A.O. lacks validity and the notice u/s 148 of the Act cannot be sustained. Making above submissions and relying upon above decisions, it is requested to allow the present petition. 5.00. Ms.Mauna Bhatt, learned Senior Standing Counsel appearing for the revenue has vehemently opposed the present petition. She contended that in the return of income filed for the A.YH. 2013-14, the petitioner assessee has not shown the capital gain arising out of the sale of the property and therefore, the petitioner is liable to pay capital gain of ₹ 25,07,732/- and assessment u/s.143(3) of the Act passed on 13/7/2015 determining total income at ₹ 43,85,390/-. It is contended that thus, the income has escaped assessment for the A.Y. 2013-14. 5.01. Ms.Bhatt, further contended that the property in question was sold on 7/12/2012 as per the sale deed dated 6/12/2012 registered with Sub-registrar, SRO, Ahmedabad-9, Bopal and as per the sale deed ₹ 67,82,50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereafter in sections 148 to 153 referred to as the relevant assessment year). 6.02.1. After enactment of Direct Tax Laws (Amendment) Act, 1987, I.e., prior to 1st April, 1989, Section 147 of the Act, reads as under: 147. Income escaping assessment.-- If the Assessing Officer, for reasons to be recorded by him in writing, is of the opinion that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, then, in the garb of re-opening 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 1st April, 1989, Assessing Officer has power to re-open, 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 the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, Parliament not only deleted the words reason to believe but also inserted the word opinion in Section 147 of the Act. However, on receipt of representations from the Companies against omission of the words reason to believe , Parliament re-introduced the said expression and deleted the word opinion on the ground that it would vest arbitrary powers in the Assessing Officer. We quote hereinbelow the relevant portion of Circular No.549 dated 31st October, 1989, which reads as follows: 7.2. Amendment made by the Amending Act, 1989, to reintroduce the expression `reason to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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