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TMI Blog2021 (7) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... hange of opinion and absence of tangible new material. We are of the considered view that on the basis of the same assessment record as was filed by the assessee during the original assessment proceedings and also scrutinised by the Assessing Officer, before passing original assessment order u/s. 143(3) of the Act is the basis for seeking reopening of the assessment. Reasoning given by the Assessing Officer for reopening assessment is nothing but change of opinion and a new approach to the existing facts. Therefore, the impugned reassessment notice cannot be sustained and is hereby quashed. - ITA No. 5389/MUM/2010 - - - Dated:- 17-6-2021 - N.K. Billaiya, Member (A) And Amit Shukla, Member (J) For the Appellant : Anil Bhalla, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee and the assessee preferred an appeal before the ld. CIT(A), who, vide order dated 20.03.2009, decided the appeal. 4. The order of the ld. CIT(A) is placed at PDF page 190 of the paper book. On 16.03.2009, the Assessing Officer assumed jurisdiction u/s. 148 of the Act by issuing notice. The following reasons were recorded for reopening the completed assessment: 5. Assessment order was passed on 25.11.2009. The order was framed u/s. 143(3) r.w.s 147 of the Act. 6. A perusal of the reasons recorded for reopening the assessment show that the Assessing Officer wants to review the very same statement of accounts which were basis for framing the original assessment order dated 22.12.2006. 7. During the course of original asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 51,083,475 included in the total loan amount was retained by the Company to continue to maintain and support its infrastructure thereby enabling, through a deemed grant by virtue of the Corporate Guarantee referred to above, as approved by the Board of Directors, the strengthening of its net worth position. The amount so retained has been transferred to Capital reserves. 8. The relevant part of the balance sheet is as under; 9. A conjoint reading of the aforesaid facts would show that the Assessing Officer is reviewing the same set of facts which were considered by him at the time of framing original assessment order and there is no new material or information with the Assessing Officer for assuming jurisdiction u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect that the impugned order of reassessment cannot be faulted as the same was based on information derived from the tax audit report. The tax audit report had already been submitted by the assessee. It is one thing to say that the AO had received information from an audit report which was not before the ITO, but it is another thing to say that such information can be derived by the material which had been supplied by the assessee himself. 23. We also cannot accept submission of Mr. Jolly to the effect that only because in the assessment order, detailed reasons have not been recorded on analysis of the materials on the record by itself may justify the AO to initiate a proceeding under s. 147 of the Act. The said submission is fallacio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessive loss or depreciation allowance or any other allowance under this Act has been computed. 1.5 The above said explanation (iii) clearly states that where excess relief has been allowed, A.O. can take action under this section. In the decision of the Hon'ble Supreme Court in the case of ACIT V Rajesh Jhaveri Stock Brokers P. Ltd. (SC) reported in 291 ITR 501, the Hon'ble Court has clarified the explanation recently in section 147 and held that what is required is reason to believe but not established the fact of estimating of income. It was further stated that where material would normally prove escapement of income is not concerned at that stage. This is so because of formation of rule is within the term of subject of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framing the reassessment order would amount to change of opinion and, therefore, reassessment order dated 25.11.2009 deserves to be quashed. 17. The Hon'ble Delhi High Court in the case of Madhukar Khosla 267 ITR 165 had the occasion to consider a similar issue and the Hon'ble High Court held as under: Qute 11. The foundation of the AO's jurisdiction and the raison d'etre of a reassessment notice are the reasons to believe . Now this should have a relation or a link with an objective fact, in the form of information or facts external to the materials on the record. Sack external facts or material constitute the driver, or the key which enables the authority to legitimately re-open the completed assessment. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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