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TMI Blog2023 (9) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961 (hereinafter referred to as "the Act") for A.Y. 2009-10 whereby and whereunder the addition made in the reassessment proceeding u/s. 148 of the Act for the A.Y. 2009-10 has been confirmed. 2. At the very threshold of the matter, the Ld. Advocate appearing for the assessee advanced her argument on the very point of the maintainability of the proceeding initiated u/s. 148 of the Act. The crux of the submission of the Ld. Advocate appearing for the assessee is on two fold. According to her, though upon receipt of the notice u/s. 148 of the Act dated 01.10.2014 alleging escapement of assessment in regard to a sum of Rs. 48,47,73,370/- being the deduction towards the provision for customer disallowances and disallowance u/s. 35(2AB) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Incometax, Central Circle 1(4), Bangalore [2017] 80 taxmann.com 77 (Karnataka) * Hewlett Packard Financial Services (India) (P.) Ltd. vs. Deputy Commissioner of Income-tax [2023] 152 taxmann.com 559 (Karnataka) * M/s. Mahindra Electric Mobility Ltd. v. ACIT [IT Appeal No. 641 (Bang.) * Provimi Animal Nutrition India Pvt. Ltd. v. Principal Commissioner of Income Tax, Bangalore [2021] 124 taxmann.com 73 3. The ultimate prayer made by the Ld.AR is, therefore, to quash the impugned reassessment proceeding initiated u/s. 148 of the Act as without jurisdiction and not maintainable in the eye of law. On the other hand, the Ld.DR relied upon the order passed by the authorities below. 4. We have heard the rival submissions made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pen the assessment was served upon the assessee. The assessee was also served with the copy of the reasons as asked for; On 28.10.2014, the assessee made his submissions explaining the issues before the Ld.AO with a prayer for dropping of the proceeding initiated u/s. 148 of the Act. We have gone through the objection dated 28.10.2014 preferred by the assessee to the DCIT, Bangalore, a copy whereof has been submitted before us which is also reproduced hereinbelow: 8. The case of the assessee is this that this particular submissions is nothing but objection of the proceeding initiated by the Ld.AO u/s. 148 of the Act; the same was not disposed of at the very threshold of the matter in terms of the provisions of the law, instead, the Ld.AO p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof has been annexed in the paper book filed before us. The same is reproduced hereinbelow. 10. In reply the appellant duly filed the details as asked for particularly the details of capital expenditure on which deduction u/s. 35(2AB) is claimed and details of provisions for customer disallowance created during the year, the same is also annexed to the paper book filed before us. The relevant extract whereof is reproduced hereinbelow. 11. Thus it appears from the above that both the alleged issues relating to escaping assessment as raised in the reopening proceeding initiated u/s. 148 of the Act, were duly verified by the assessing officer while completing the assessment u/s. 143(3) of the Act and no new material came to the knowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only one condition has remained, viz., where the Assessing Officer has reason to believe that income has escaped assessment, the section confers jurisdiction to reopen the assessment. Therefore, post 1-4-1989, the power to re-open is much wider. However, one needs to give a schematic interpretation to the words 'reason to believe, failing which section 147 would give arbitrary powers to the Assessing Officer to reopen assessments on the basis of 'mere change of opinion', which cannot be per se reason to reopen. One must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review; he has the power to reassess, but the reassessment has to be based on fulf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer cannot exercise the power to review or reassess the same. The same, in this case, is a change of opinion which cannot be appreciated, which is a product of uncanalised and unguided power exercised by the Assessing Officer in the garb of reassessment. We also find that the ratio laid down by the Hon'ble Apex Court in the present facts and circumstances of the case, to this effect that the reopening of the assessment on the basis of mere change of opinion cannot be per se reason to reopening, has been duly followed in all the other judgments relied upon by the Ld.AR. Thus on identical facts and circumstances of the matter, respectfully relying on the judgments cited by the Ld.AR, we find the reassessment proceeding initiated u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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