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TMI Blog2021 (2) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of assessee to disclose fully and truly all material facts necessary for assessment, therefore, action under section 147 initiated after expiry of 04 years from the end of the relevant assessment year, the re-assessment would be bad in Law and is clearly hit by First Proviso to Section 147 . A.O. did not apply his mind to the reasons recorded for reopening of the assessment and without verifying the record of the Investor Companies also which have been accepted in the assessments under section 153C/153A prior to recording of the reasons clearly show that A.O. has not applied his mind to the facts already available on record. Reopening of the assessment is clearly bad in Law and liable to be quashed. In view of the above discussion, we set aside the Orders of the authorities below and quash the reopening of the assessment in the matter - Decided in favour of assessee. - SHRI BHAVNESH SAINI , JUDICIAL MEMBER AND SHRI B. R. R. KUMAR , ACCOUNTANT MEMBER For the Assessee : Shri Suresh K. Gupta , C. A. For the Revenue : Shri Prakash Dubey , Sr. DR ORDER PER BHAVNESH SAINI , J. M. This appeal by Assessee has been directed against the Order of the Ld. CIT(A)-35, New Delhi, Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that assessee has received genuine share application money. The A.O. discussed the entire evidence and material on record and investigation carried-out by him and came to the conclusion that assessee failed to explain the genuineness of the share application money received of ₹ 95 lakhs and accordingly, made addition under section 68 of the I.T. Act, 1961. The A.O. also noted that since assessee has received accommodation entry on account of share capital money from entry operators, therefore, assessee has also paid ₹ 1,90,000/- as Commission which was added on account of unexplained expenditure under section 69C of the I.T. Act, 1961. The A.O. completed the re-assessment order Dated 26.12.2016 under section 143(3)/147 of the I.T. Act, 1961. 3.1. The assessee challenged the reopening of the assessment as well as addition on merit before the Ld. CIT(A). The Ld. CIT(A) reproduced the explanation of assessee in the appellate order, however, dismissed the appeal of assessee. 4. The Learned Counsel for the Assessee submitted that assessment was originally completed under section 143(3) vide Order Dated 14.12.2011 [PB-53]. In the original assessment proceedings, A.O. issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, by notice dated 27.03.2019 issued under Section 148 of the Income-Tax Act, the matter was sought to be re-opened. While accepting the challenge to the issuance of notice, the High Court in para 12 of its Judgment observed as under : 12. Thus we find that the reasons in support of the impugned notice is the very issue in respect of which the Assessing Officer has raised the query dated 25 September 2017 during the assessment proceedings and the Petitioner had responded to the same by its letters dated 10 December 2017 and 21 December 2017 justifying its stand. The non-rejection of the explanation in the Assessment Order would amount to the Assessing Officer accepting the view of the assessee, thus taking a view/ forming an opinion. Therefore, in these circumstances, the reasons in support of the impugned notice proceed on a mere change of opinion and therefore would be completely without jurisdiction in the present facts. Accordingly, the impugned notice dated 27 March 2019 is quashed and set-aside. In the circumstances, we see no reason to interfere in the matter. This special leave petition is, accordingly, dismissed. 4.1. Learned Counsel for the Assessee submitted that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. On the other hand, Ld. D.R. relied upon the Orders of the authorities below and submitted that whatever information was received by the A.O. from the Investigation Wing was the basis for reopening of the assessment which A.O. has correctly recorded in the reasons and rightly proceeded to initiate the proceedings under section 147 of the I.T. Act, 1961. 6. We have considered the rival submissions and perused the material on record. Section 147 of the I.T. Act, 1961 and its First proviso provides as under : 147. Income escaping assessment : If the Assessing Officer has reason to believe] 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 allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) : Provided that where an assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Ltd., 256 ITR 1 (FB) (Del.) held that on mere change of opinion of A.O, cannot be a ground for reassessment and that amendment of Section 147 w.e.f. 01.04.1989 has not alter the position. This decision have been confirmed by the Hon ble Supreme Court in the case of CIT vs., Kelvinator of India Ltd., 320 ITR 561 (SC) by dismissing the Departmental Appeal. Same view have been taken by the Hon ble Gujarat High Court in the case of Garden Silk Mills P. Ltd., 237 ITR 688 (Guj.). The Hon ble Calcutta High Court in the case of Berger Paints India Ltd., 245 ITR 648 held that when any particular issue has been considered by the ITO and Commissioner of Income Tax(A) and when there is no failure to disclose the facts, the reassessment proceedings are not valid. The Hon ble Supreme Court in the case of Foraner France 264 ITR 566 held that re-assessment not on basis of mere change of opinion . The Hon ble Supreme Court in the case of Indian Oil Corporation 159 ITR 956 held that no case under section 148 is made-out when the facts were known all along with the Revenue while making the original assessment. The Hon ble Supreme Court in the case of Associated Stone Industry 244 ITR 560 held that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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