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TMI Blog2024 (9) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... cords available along with material and as such, it cannot be said that there is escapement of income which was claimed by the petitioner assessee under Section 85 (2) (d) of the Act Reliance placed by the learned advocate for the respondent on the decision of Totgars Co-operative Sales Society Ltd. [ 2010 (2) TMI 3 - SU PREME COURT] would not be applicable in the facts of the case as the petitioner has claimed deduction under Section 80P(2) (d) of the Act from the interest earned from the Co-operative Bank which are infact Co-operative Societies and as such, there is a mere change of opinion on the part of the Assessing Officer while issuing impugned notice u/s148 of the Act. It is well settled by the decision of Kelvinator of India Ltd. [ 2010 (1) TMI 11 - SUPREME COURT] wherein it is held that even after the amendment under Section 147, the concept of AO having tangible material to form a belief that the income chargeable to tax has escaped assessment is not done away with and in this context, the principle of change of opinion would squarely apply. Decided in favour of assessee. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P (2) amounting to Rs. 24,51,945/- which includes Rs. 7,77,224/- earned as Co-operative Bank FD interest and the same was allowed during assessment. However, on going through the computation of income, it was noticed that the assessee had claimed and was allowed deduction of Rs. 7,77,224/- u/s. 80P (2) (d) which was irregular. This has resulted into underassessment of income of Rs. 7,77,224/-. 3. On verification of the available records, it is seen that the assessee had claimed and was allowed deduction of Rs. 7,77,224/- u/s. 80P (2) (d) which was irregular. This has resulted into underassessment of income of Rs. 7,77,224/-. 4. A perusal and analysis of the information collected /material available shows that income has escaped assessment and there is no need for further enquiries u/s. 133 (6) to establish the same. 5. On perusal of the available records, it is seen that the assessee had claimed and was allowed deduction of Rs. 7,77,224/- u/s. 80P (2) (d) which was irregular. This has resulted into underassessment of income of Rs. 7,77,224/-. 6. On the basis of the facts of the case records available with this Office and from the above information, it is prima facie concluded that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Ahmedabad Bench of the Income Tax Appellate Tribunal, and as such there is no escapement of income so as to form a reason to believe for reopening of assessment in contradiction to the binding Judgments of the Jurisdictional Courts. 6.6. It was therefore submitted that the sanctioning authority under Section 151 of the Act has overlooked the deficiencies in issuance of the notice under Section 148 of the Act and sanction has been accorded mechanically. 6.7. Learned advocate Mr. Manish Shah further submitted that in the order disposing the objections, the respondent mainly relied on the general legal principles laid down by various Courts without any reference to the facts of the case and merely stated that the decisions relied upon by the assessee are distinguishable on facts and the detailed objections raised by the petitioner are not dealt with. 6.8. Learned advocate Mr. Manish Shah therefore submitted that impugned notice under Section 148 of the Act issued beyond the period of four years from the end of the Assessment Year 2014-15 is required to be quashed and set aside as there is no failure on the part of the petitioner to disclose fully and truly all the material fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found. 7.2. Learned Senior Standing Counsel Mr. Sanghani therefore submitted that in view of various decisions of this Court, a notice issued under Section 148 of the Act cannot be treated as bad in law. 7.3. It was further submitted that the Assessing Officer can start re-assessment proceedings either because of some fresh facts which had come to his knowledge, which were not previously disclosed or some information with regard to the fact previously disclosed comes into his possession which tends to expose untruthfulness of those facts and in such cases, it is not a mere change of opinion or having different inference on such facts as were earlier available but it acts as fresh information. It was therefore submitted that the contentions raised on behalf of the petitioner are not tenable and impugned notice cannot be said to have been issued on the basis of the mere change of opinion. 7.4. It was submitted that reliance placed on the decision of this Court in case of State Bank of India (Supra) is not applicable in the facts of the case as in the said case, the matter was restored back to the file of Assessing Officer for verification in respect of allege claim under Section 80P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apement of income amounting to Rs. 7,77,224/- which was claimed by the petitioner assessee under Section 80P (2) (d) of the Act. Reliance placed by the learned advocate for the respondent on the decision of the Hon ble Apex Court in case of Totgars Co-operative Sales Society Ltd. (Supra) would not be applicable in the facts of the case as the petitioner has claimed deduction under Section 80P (2) (d) (sic) of the Act from the interest earned from the Co-operative Bank which are infact Co-operative Societies and as such, there is a mere change of opinion on the part of the Assessing Officer while issuing impugned notice under Section 148 of the Act. 10. It is well settled by the decision of the Hon ble Apex Court in case of Commissioner of Income Tax Vs. Kelvinator of India Ltd. reported in (2010) 320 ITR 561(SC), wherein it is held that even after the amendment under Section 147, the concept of Assessing Officer having tangible material to form a belief that the income chargeable to tax has escaped assessment is not done away with and in this context, the principle of change of opinion would squarely apply. The Hon ble Apex Court in case of Kelvinator of India Ltd. (Supra) has held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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