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TMI Blog2022 (1) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... at when on consideration of material on record, one view is conclusively taken by the Assessing Officer, it would not be open to reopen the assessment based on the very same material with a view to take another view. Notice is hereby quashed - Decided in favour of assessee. - WRIT PETITION NO.3415 OF 2019 - - - Dated:- 23-12-2021 - K. R. SHRIRAM AMIT B. BORKAR, JJ. Ms. Aarti Sathe a/w. Ms. Aasavari Kadam for Petitioner. Mr. Akhileshwar Sharma for the Respondent-Revenue. P. C. : Petitioner is impugning the notice dated 29/3/2019 received under Section 148 of the Income Tax Act, 1961 (said Act) for Assessment Year 2014-15 and order dated 11/11/2019 rejecting objections filed by the Petitioner. 2. Since the reopening is proposed within the expiry of 4 years from the relevant Assessment year, proviso to Section 147 will not apply. As submitted by Mr. Sharma what the Court has to look for is only whether there is tangible material mentioned for reopening the assessment. Of course Mr. Sharma also submitted the document for profit on sale of and surrender and allotment of new flats and gift of shares of 3G Motors Private Limited were not submitted to the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on scrutiny of the details and as per agreement of new purchased flats, it is seen that petitioner had surrendered old flats purchased in Financial Year 2010-2011 against a new flat on 30/12/2013. Petitioner was called upon to produce a copy of possession letters of old flats and new flats and explanation whether old flats were shown in the balance sheet and whether house property income has been applied for the old flats and new flats and reasons. 6. Petitioner by its Chartered Accountant's letter dated 21/11/2016 and 30/11/2016 provided documents and explanation. This was followed by the Assessment order dated 15/12/2016 in which the Assessing officer has not made any reference to the exchange of flats or sale of flats and Gift Deed of shares of 3G Motors Private Limited. But considering the notices issued under Section 142(1) it is quite clear that the Assessing Officer has applied his mind because he has sought further details/documents and information on verification of documents submitted by petitioner and on scrutiny of those documents. 7. Mr. Sharma submitted that the Assessing Officer while passing regular assessment of its order has overlooked or ignored the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Chief Justice of India then was) and Bawa Abhai Singh v. Deputy Commissioner of Income-Tax [2002] 253 ITR 83 comprising Arijit Pasayat and D.K. Jain Page 0602 (as their Lordships then were). It is quite possible that had the Court in Consolidated Photo been made aware of the consistent opinion of this Court in Jindal Photo and Bawa Abhai Singh, their conclusion may have been totally different, notwithstanding alternative view of the Gujarat High Court. 9. In the case of Commissioner of Income Tax and Ors. vs. Rubix Trading Pvt. Ltd. 2020 (421) ITR 330 (Bom) reported in in paragraph 16 it is held as under: 16. It is true that in the final order of assessment, the Assessing Officer had not elaborated this aspect but had not made any disallowance or addition in the hands of the assessee. Merely because the order of assessment was silent on a particular claim of the assessee, would not by itself mean that the same was not scrutinized or that the Assessing Officer had not formed an opinion with respect to the same. If after detailed scrutiny during the assessment, the Assessing Officer examines a claim but does not reject the claim of the assessee which had come up for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponse from the assessee, thereafter in what manner such claim should be treated in the final order of assessment, is an issue on which the assessee would have no control whatsoever. Whether the Assessing Officer allows such a claim, rejects such a claim or partially allows and partially rejects the claim, are all options available with the Assessing Officer, over which the assessee beyond trying to persuade the Assessing Officer, would have no control whatsoever. Therefore, while framing the assessment, allowing the claim fully or partially, in what manner the assessment order should be framed, is totally beyond the control of the assessee. If the Assessing Officer, therefore, after scrutinizing the claim minutely during the assessment proceedings, does not reject such a claim, but chooses not to give any reasons for such a course of action that he adopts, it can hardly be stated that he did not form an opinion on such a claim. It is not unknown that assessments of larger corporations in the modern day, involve a large number of complex claims, voluminous material, numerous exemptions and deductions. If the Assessing Officer is burdened with the responsibility of giving reasons fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction in respect of the query raised. Paragraphs 11, 12 and 14 of Aroni Commercials Ltd (supra) reads as under: 11) In this case we are dealing with the reopening of assessment completed by order dated 12 October 2010 under Section 143(3) of the Act. The law with regard to reopening of assessment is fairly settled by decisions of Courts. The power of the Assessing Officers under Sections 147 and 148 of the Act to reopen an assessment is classified into two :- (a) Reopening of assessment within a period of 4 years from the end of the relevant assessment year and (b) Reopening of assessment beyond a period of 4 years from the end of the relevant assessment year. The common jurisdictional requirement for reopening of assessment both within and beyond a period of 4 years has to be on the basis of reason to believe that income chargeable to tax has escaped assessment and the reason for issuing a notice to reopen are recorded before issuing a notice. However, there is one additional jurisdictional requirement to be satisfied while seeking to reopen the assessment beyond the period of 4 years from the end of the relevant assessment year viz. that there must hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under Section 148 of the Act to reopen a concluded assessment the satisfaction of the Assessing Officer issuing the notice is of primary importance. This satisfaction must be prima facie satisfaction of having a reason to believe that income chargeable to tax has escaped assessment. At the stage of the issuing of the notice under Section 148 of the Act it is not necessary for the Assessing officer to establish beyond doubt that income indeed has escaped assessment. 14) We find that during the assessment proceedings the petitioner had by a letter dated 9 July 2010 pointed out that they were engaged in the business of financing trading and investment in shares and securities. Further, by a letter dated 8 September 2010 during the course of assessment proceedings on a specific query made by the Assessing Officer, the petitioner has disclosed in detail as to why its profit on sale of investments should not be taxed as business profits but charged to tax under the head capital gain. In support of its contention the petitioner had also relied upon CBDT Circular No.4/2007 dated 15 June 2007. (The reasons for reopening furnished by the Assessing Officer also places reliance upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch 2013 is merely on the basis of change of opinion of the Assessing Officer from that held earlier during the course of assessment proceeding leading to the order dated 12 October 2010. This change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment. 12. The reasons in this case relate to same issues which we have mentioned earlier on capital gains on exchange of flats and on the gift of shares of 3G Motors Private Limited received by petitioner from his late father. The Assessing Officer in the reasons for the re-opening says that he is of the opinion that there has been escapement of income, on perusal of revised return of income filed, ledger of profit on surrender/allotment of new flats, details filed and submission made by the assessee that the transfer of capital assets has been effected by way of exchange in this case and as per assessees calculations. 13. Therefore, it is clear that the primary facts necessary for assessment were also disclosed. It is settled law that the Assessing Officer is not entitled for change of opinion to commence proceedings for reassessment. It is also settled law th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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