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TMI Blog2021 (3) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts which were available at the time of original assessment. Therefore, in the present case, the reasons recorded by the assessing officer led to belief about the escapement of assessment is nothing, but mere a change of opinion, which cannot sustainable in law. It is not the case of the revenue that, subsequently i.e. after the order of scrutiny assessment, the assessing officer has received tangible material to come to the conclusion that, there is escapement of income. We have also examined the aspect whether any tangible material exists or not. We do not find any tangible material in the hands of the assessing officer to form a prima facie opinion that, the income has escaped assessment. Therefore, in the present case, in the absence of element of non-disclosure of relevant materials fully and truly necessary for assessment, the assessing officer has no right to reopen the assessment. - Decided in favour of assessee. - R/Special Civil Application No. 20478 of 2019 - - - Dated:- 1-3-2021 - Honourable Mr. Justice J.B. Pardiwala And Honourable Mr. Justice Ilesh J. Vora For the Petitioner(s) : Ms Vaibhavi K Parikh For the Respondent(s) : Mrs Mauna M Bhatt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 10,41,320/-. 2.4 The revenue has issued the impugned Notice dated 27.03.2019 under Section 148 of the Act for reopening of the assessment for the year under consideration. 2.5 Pursuant to the notice dated 27.03.2019, the assessee company filed its return of income and requested the respondent to supply the reasons for reopening, which has been provided by email dated 05.07.2019. The reasons recorded reads thus : Reasons for reopening :- Reasons for reopening of the assessment in the case of M/s. Rajena Agro Products Pvt. Ltd. AY. 2014-15 u/s. 147 of the I.T.Act. 1. Brief Details of the Assessee:- In this case, the assessee has filed her Return of Income for A.Y, 2014-15 on 29.11.2014 declaring total income of ₹ 58,08,013/-. The assessment u/s. 143(3) was finalized on 22.09.2016 by assessing total income of ₹ 95,03,166/-. 2. Brief details of information collected /received b the AO: On verification of the details submitted by the assessee it is seen that the assessee has received a VAT refund of ₹ 79,78,941/- during the year, and same is being reflected in the bank statement also. However, the assessee has not de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case, as stated in Para 5 that the assessee had received a sum of ₹ 79,78,941/as VAT refund, but in absence of the details that, when entire amount of ₹ 79,78,941/- has been received and same is being reflected in the bank statement. This has resulted into under assessment of income of ₹ 79,78,941/-. Therefore I have reason to believe that the income to the tune of ₹ 79,78,941/has been escaped from the assessment. Accordingly, in this the only requirement to initiate proceedings u/s. 147 is reason to believe which has been recorded in Para 6. Income chargeable to tax has been escaped by an amount of ₹ 79,78,941/- In view of the above, I have reason to believe that the income to the above extent i.e. ₹ 79,78,941/- which is chargeable to tax has escaped assessment for the previous year relevant to A.Y. 2014-15 within the meaning of clause (c) of section 151 of the Act. 2.6 The writ applicant filed its objections vide its communication dated 09.07.2019 and the same came to be rejected by the Revenue vide order dated 24.10.2019. 3. Being dissatisfied with the decision of reopening the assessment, the writ applicant has come up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing for the writ applicant submits that, the impugned notice is bad, illegal, contrary to law and is required to be quashed and set aside. 9. On the other hand, the writ application has been vehemently opposed by Mrs. Mauna Bhatt, the learned Sr. Standing Counsel appearing for the Revenue. Mrs. Bhatt has submitted that, the revenue is justified in reopening the assessment for the year under consideration as the assessee company failed to disclose the amount of VAT while filing the return of income, which resulted into under assessment of income for which the assessing officer has reason to believe that, the income to the tune of ₹ 79,78,941/- has escaped assessment. 10. In view of the contentions raised by the Revenue, Mrs. Bhatt, prays that, there being no merits in the writ application, the same may be rejected. 11. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the revenue is justified in reopening the assessment for the year A.Y. 2014-15 ? 12. It appears from the record that, after filing of the return for the year under consideration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the Department, then, in the garb of re-opening the assessment, review would take place. 7. 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. 15.A careful analysis of the judgment of the Apex Court, it is settled that, mere a fresh application of mind to the same set of facts or mere a change of opinion does not confer jurisdiction to issue Notice under Section 148 of the Act. In light of the above law, we shall now deal with the facts of the present case. 16. It is an undisputed fact that, the issue of the amount of ₹ 79,78,941/- under the VAT received during the year under consideration was examined during the course of the scrutiny assessment as item no.3 of the assessment order dated 22.12.2016. During the course of the scrutiny assessment, various details were called for by the revenue and accordingly, the assessee company had furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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