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TMI Blog2020 (12) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... im to advice the Assessing Officer to how he has to go about with the assessment proceedings. Having noted that the assessee, at the first instance, sought for furnishing the reasons for reopening, would clearly show that non-furnishing of reasons has put him to prejudice. As noted above, the Revenue could not produce any evidence to show that the reasons recorded were provided to the assessee in spite of opportunity having been granted by the Tribunal. Thus, we find that the Tribunal was right in allowing the assessee's appeal and quashing the re-assessment proceedings. - Tax Case Appeal No.273 of 2020 - - - Dated:- 16-12-2020 - Hon'ble Mr. Justice T.S. Sivagnanam And Hon'ble Mrs. Justice V. Bhavani Subbaroyan For the Applicant : Ms.R.Hemalatha, Senior Standing Counsel For the Respondent : Mr.Suhrit Parthasarathy JUDGMENT T.S.SIVAGNANAM, J. This appeal by the Revenue filed under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act ) is directed against the order dated 10.01.2018 made in I.T.A.No.1372/Mds/2017 on the file of the Income Tax Appellate Tribunal 'C' Bench, Chennai (for brevity the Tribunal ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mately, the assessment stood completed by order dated 26.03.2014. Challenging the same, the assessee preferred appeal before the Commissioner of Income Tax (Appeals)-2, Chennai (for brevity the CIT(A) ). By order dated 31.03.2017, the appeal was dismissed. Challenging the same, the assessee filed appeal before the Tribunal. The Tribunal allowed the assessee's appeal on the ground that reasons for reopening were not communicated to the assessee and despite opportunities, the Revenue was not able to produce any evidence to show that the reasons recorded for reopening had been provided to the assessee as requested by them in their letter. The Tribunal relied upon the decision of the High Court of Bombay in the case of CIT vs. Videsh Sanchar Nigam Ltd. [(2012) 340 ITR 66 (Bom.)] and the decision of this Court in Jayanthi Natarajan v. Assistant Commissioner of Income Tax [W.P.No.1905 of 2017 dated 14.09.2017]. Aggrieved by such order, the Revenue is before us by way of this appeal. 5.Ms.R.Hemalatha, learned Senior Standing Counsel appearing for the appellant/Revenue submitted that though the reasons for reopening were known to the assessee, the assessee did not rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with proper application of mind and due diligence; there has been no discussion with regard to the claim of exemption in respect of the sale of land by the assessee; and the original assessment was without appreciating the material evidence in the proper perspective. Thus, it is submitted that the above will clearly show that there was no failure on the part of the assessee to fully and truly disclose all details and if the Assessing Officer has not looked into the details, which were already available on record, it is nothing but a clear case of change of opinion. 8.Further, it is submitted that Section 292BB of the Act can have no application to the facts and circumstances of the case. Further, it is submitted that the assessee has sought for the reasons for reopening, which were not furnished in spite the Assessing Officer having received the letter requesting for communication of reasons for the reopening. This issue was specifically raised by the assessee before the CIT(A), which was not considered. In support of his contention, the learned counsel placed reliance on the decisions in Calcutta Discount Co. Ltd. vs. ITO [(1961) 41 ITR 121]; CIT vs. Kelvinator of India Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can raise objection in the reply to the notice before the completion of the assessment or re-assessment. 11.It has been held in CIT vs. Shri.M.Hemanathan [(2016) 384 ITR 177 (Madras)] that once the nature of the proceedings made known and understood by the assessee, he should not be allowed to take advantage of certain procedural defects. 12.What is important to note is that Section 292BB of the Act is not a cure when there is total absence of notice. In this regard, it would be beneficial to refer to the decision in the case of CIT vs. Laxman Das Khandelwal [(2019) 417 ITR 325 (SC)]. Therefore, the provisions of Section 292BB of the Act will not be applicable to a case where the assessee questions the issuance of the notice itself, because non-issuance of notice would result in lack of jurisdiction. Firstly, the necessity to communicate the reasons for reopening is not contained anywhere in the Income Tax Act. The Hon'ble Supreme Court in GKN Driveshafts (India) Ltd. vs. ITO [(2003) 259 ITR 19 (SC)] had laid down this rule so that the assessee gets an opportunity to know the reasons based on which the re-opening has been done. The assessee on receipt of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The duty of the assessee is to disclose fully and truly all material particulars and it is not for him to advice the Assessing Officer to how he has to go about with the assessment proceedings. 14.In Kelvinator of India Limited (supra), the Hon'ble Supreme Court pointed out the conceptual difference between power to review and power to re-assess; the Assessing Officer has no power to review; he has the power to re-assess, but re-assessment has to be based on fulfilment of certain precondition and if the concept of change of opinion is removed, then, in the garb of reopening the assessment, review would take place. Therefore, the concept of change of opinion must be treated as an in-built test to adjudicate abuse of power by the Assessing Officer. After 01.04.1989, the Assessing Officer has power to re-open, provided there is change of material to come to the conclusion that there is escapement of income from assessment. Reasons must have live link with the formation of the belief. The Tribunal rightly relied on the decision in Videsh Sanchar Nigam Ltd., (supra) wherein, it was held that since the reasons recorded for re-opening of the assessment were not f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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