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TMI Blog2022 (4) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed all material facts necessary for the purpose of assessment. They were carefully scrutinized and figures of income as well as deduction were carefully reworked by the AO. In fact, in the reasons for reopening, there is not even a whisper as to what was not disclosed. In our view, this is not a case where the assessment is sought to be reopened on the reasonable belief that income had escaped assessment on account of failure of assessee to disclose truly and fully all material facts that were necessary for computation of income but this is a case wherein the assessment sought to be reopened on account of change of opinion of the Assessing Officer about the manner of computation and deduction under Section 80-IA of the Act. In our vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertaining to deduction claimed under section 80-IA of the Act with cogent documentary evidences were also sought. 6] Pursuant to the abovesaid notice, the petitioner submitted a copy of the return, computation of income, tax audit report in Form No. 3CD and copy of annual report. 7] According to the petitioner, respondent No.2 during the course of assessment proceedings requested for further details in respect of claim of deduction under section 80-IA of the Act from wind power generation and the same were submitted. 8] According to the petitioner, respondent No.2 after scrutinizing all the details furnished by the petitioner and examining all the issues passed an assessment order dated 09.12.2016 under section 143(3) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No.1, thereafter, by impugned order dated 13.12.2021 rejected the objections of the petitioner. 13] We have heard Mr. Pardiwalla, the learned Senior Counsel for the petitioner and Mr. Suresh Kumar, the learned counsel for the respondents- Revenue. 14] Mr. Pardiwalla submits that the existence of a valid reason to believe is a sine qua non for the exercise of jurisdiction under section 147 of the Act. It is submitted that the said reasons to believe cannot be based on surmise or conjecture or an assumption or an audit scrutiny without any independent application of mind by assessing officer. 15] It is submitted that the reasons recorded for reopening assessment must be based on new information or material, however, in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. It is submitted that no specific query was raised in that respect at the time of original assessment proceeding. It is thus submitted that the reopening is based on tangible material and this is not a case of mere change of opinion. It is submitted that petition be dismissed. 18] We have perused the reasons recorded for reopening the assessment. For ease of reference, they are scanned and reproduced herein below. 19] Respondent No.2 in its affidavit in reply dated 1.2.2022 in paragraphs 4.4 and 4.5 has stated thus: 4.4. Later during assessment proceedings the erstwhile AO specifically asked from the assessee about his claim of deduction u/s 80-IA(4) of the Act and the assessee submitted the requisite document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d truly disclose material fact. After a period of four years even if the Assessing Officer has some tangible material to come to the conclusion that there is an escapement of income from assessment, he cannot exercise the power to reopen unless he discloses what was the material fact which was not truly and fully disclosed by the assessee. 22] In the present case, the petitioner had truly and fully disclosed all material facts necessary for the purpose of assessment. They were carefully scrutinized and figures of income as well as deduction were carefully reworked by the Assessing Officer. In fact, in the reasons for reopening, there is not even a whisper as to what was not disclosed. In our view, this is not a case where the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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