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TMI Blog2019 (11) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... suing of re-opening notice within the period of four years from the end of the relevant assessment year. Thus, in the absence of cumulative satisfaction of reason to believe and in the absence of any income chargeable to tax escaping assessment, the Assessing Officer is not empowered with jurisdiction to reopen an assessment. In the present case, it is also a fact that original assessment for the year under consideration was framed under section 143(3) of the Act. In such a situation, another aspect that has to be kept in mind is as to whether the reopening is based upon any tangible material which has come to the knowledge of the Assessing Officer subsequent to the framing of the earlier assessment or whether the same is merely a change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2016 which was served on the assessee on 30.03.2016. Thereafter, the case was taken up for scrutiny and consequently assessment was framed u/s 143(3) r.w.s. 148 of the Act dated 06.12.2016 whereby the total income was determined at ₹ 24,56,700/-. Aggrieved by the order of AO, assessee carried the matter before Ld.CIT(A), who vide order dt.05.03.2019 (in appeal No.Nsk/CIT(A)-2/445/2016-17) dismissed the appeal of the assessee. Aggrieved by the order of Ld.CIT(A), assessee is now in appeal and has raised the following grounds : 1. In the absence of conditions precedent for issuance of notice u/s 148 of the I.T. Act 1961, the impugned reassessment proceedings are bad in law, null and void-ab-initio and wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that in the trading account, gross profit was shown as ₹ 39,11,873/-. The AO was therefore of the view that the difference of ₹ 23,74,841/- had escaped from assessment and accordingly notice u/s 148 of the Act was issued. During the course of re-assessment proceedings, the assessee was asked to explain the details which were furnished by the assessee but the same was not found acceptable to the AO. Accordingly, AO treated ₹ 23,74,841/- as income from sale of land and made its addition. Aggrieved by the order of AO, assessee carried the matter before Ld.CIT(A), who upheld the order of AO. Aggrieved by the order of Ld.CIT(A), assessee is now in appeal. 5. Before me, Ld.A.R. reiterated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he change of opinion cannot constitute a reason for re-opening of the completed assessment. He therefore submitted that the order of AO be set aside. Ld. D.R. on the other hand, supported the order of lower authorities. 6. I have heard the rival submissions and perused the material on record. Assessee in the present ground is challenging the re-opening of the assessment u/s 143(3) r.w.s. 147 of the Act. It is an undisputed fact that assessee had filed original return of income for A.Y. 2011-12 on 29.09.2011 and the original assessment was framed u/s 143(3) of the Act vide order dt.17.01.2014. Thereafter, notice u/s 148 of the Act was issued on 28.03.2016 i.e., within four years from the end of the assessment year A.Y. 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act is not to be satisfied for issuing of re-opening notice within the period of four years from the end of the relevant assessment year. Thus, in the absence of cumulative satisfaction of reason to believe and in the absence of any income chargeable to tax escaping assessment, the Assessing Officer is not empowered with jurisdiction to reopen an assessment. 8. In the present case, it is also a fact that original assessment for the year under consideration was framed under section 143(3) of the Act. In such a situation, another aspect that has to be kept in mind is as to whether the reopening is based upon any tangible material which has come to the knowledge of the Assessing Officer subsequent to the framing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review ; he has the power to reassess. But reassessment 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 1st 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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