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TMI Blog2022 (7) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer proceeded on erroneous premise. This Court in case of Gujarat Power Corporation Ltd. [ 2012 (9) TMI 69 - GUJARAT HIGH COURT] has held that merely because the Assessing Officer did not record the reasons for making no disallowance in the assessment order under section 143(3) of the Act, 1961, would be of no consequence when during the course of assessment proceedings, the Assessing Officer did not reject the reply of the assessee and therefore, any reopening of such assessment would amount to change of opinion. Such tangible material which is otherwise available on the original assessment record and when there is a complete disclosure of all relevant facts upon which the assessment is made, the Assessing Officer cannot reopen the assessment on the ground that the income has escaped assessment due to failure on part of the assessee to disclose truly and fully the material facts. The petition requires consideration and is accordingly allowed. Notice issued by the respondent authority under section 148 of the Act, 1961 is hereby quashed and set aside and as a consequence thereof notice under section 143(2) read with section 147 of the Act, 1961 as well as order rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority has filed the affidavit-in-reply dated 21.01.2022 and has opposed this petition. 6. The brief facts of the case are as under: 6.1) The petitioner, a private limited company, filed its return of income for the assessment year 2017-2018 originally on 30.10.2017 declaring total loss of Rs. 2,00,64,800/-. 6.2) Summons under section 131(1A) of the Act, 1961 dated 23rd January, 2018 was issued by DDIT (Inv.) Unit-1(2), Ahmedabad calling upon the petitioner to submit details of cash deposited during the financial year 2015-2016 and financial year 2016-2017 in the required format. 6.3) The petitioner submitted various charts showing cash deposit in the bank account of the petitioner during the financial years 2015-2016 and 2016-2017. 6.4) Thereafter the petitioner received notice dated 3rd September, 2019 under section 142(1) of the Act, 1961 for providing various information. As per paragraph no.20 of the said notice, detailed explanation was asked regarding cash deposited during the demonitisation period and as per paragraph no.22, the Assessing Officer called for detailed explanation in reference to cash deposited in the bank accounts along with point n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above is clearly attract the provision of Section 69A of the Income Tax Act and therefore, required to be added back to the total income of the assessee. Failure on the part of the assessee to disclose fully and truly all the material facts necessary for the assessment , the income of the assessee has escaped assessment to the tune of Rs.1,46,42,000/- for the AY 2017-18 within the meaning of Section 147 of the Income Tax Act, 1961. I have, therefore, reason to believe that this is fit case for reopening the assessment u/s. 147 of the Act and for the issue of notice u/s. 148 of the Income Tax Act, 1961. 6.9) On receipt of above reasons, the petitioner filed objections on 26.05.2021 which were rejected by the respondent authority by order dated 12.08.2021. Hence, this petition. 7. Learned advocate Mr. Ketan H. Shah for the petitioner submitted that reopening the assessment by the Assessing Officer under section 147 of the Act, 1961, is nothing but change of opinion because the issue with regard to the cash deposit during the demonitisation period was examined during the course of regular assessment completed under section 143(3) of the Act, 1961. 7.1) In support of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material on record. It is not in dispute that the Assessing Officer before issuing notice under section 142(1) of the Act,1961 called for details of cash deposited by the assessee during the demonitisation period. Investigation was also carried out by DDIT by issuing summons under section 131(1A) of the Act, 1961 in the year 2018 and the petitioner furnished all the required details in compliance of such summons. Thus while passing the order under section 143(3) on 20.11.2019, the Assessing Officer considered the summons issued by the DDIT as well as the reply of the assessee pursuant to the notice under section 142(1) of the Act, 1961. From the reply of the petitioner to the notice under section1 142(1) of the Act, 1961 it appears that the petitioner had furnished all the required details including the bank statement for the period from 8.11.2016 to 31.12.2016 and thereafter the Assessing Officer passed the assessment order under section 143(3) of the Act,1961. 10. The petitioner in reply dated 29.01.2018 pursuant to the summons issued under section 131(1A) of the Act, 1961 has described the business and operation of the petitioner company and has also submitted source of cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance in the assessment order under section 143(3) of the Act, 1961, would be of no consequence when during the course of assessment proceedings, the Assessing Officer did not reject the reply of the assessee and therefore, any reopening of such assessment would amount to change of opinion. If the Assessing Officer has some tangible material in his possession on the basis of which the Assessing Officer can form the belief that income chargeable to tax has escaped assessment, it would be permissible to reopen the assessment in exercise of powers under section 147 of the Act, 1961. However, such tangible material which is otherwise available on the original assessment record and when there is a complete disclosure of all relevant facts upon which the assessment is made, the Assessing Officer cannot reopen the assessment on the ground that the income has escaped assessment due to failure on part of the assessee to disclose truly and fully the material facts. 13. In view of the foregoing reasons, the petition requires consideration and is accordingly allowed. Notice dated 30.03.2021 (Annexure-F) issued by the respondent authority under section 148 of the Act, 1961 is hereby quashed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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