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TMI Blog2024 (9) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... l already available on record and/or the material which were already considered by the then AO, is nothing but a change of opinion. It is not the case of the AO that new information and/or any tangible material has come into possession. Thus, in our view, forming any opinion based on same facts and circumstances which were then available with the AO at the time of scrutiny is said to be change of opinion and thereby the same is not permissible. See M/S. KELVINATOR OF INDIA LIMITED [ 2010 (1) TMI 11 - SUPREME COURT] wherein held schematic interpretation to the words reason to believe failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of mere change of opinion , which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of re- opening the assessment, review would ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchased in respect of claim of deduction under Section 54F of the Act. 2.6 In furtherance thereof, petitioner vide letter dated 26th November, 2018 furnished the details as under. Working of capital gain was shown in computation of income and furnished earlier (Point No. 1); Proof of deduction under Section 54F of the Act was furnished earlier and copy of registered purchase agreement was furnished then (Point No.2). 2.7 The then Assessing Officer having satisfied himself, framed the assessment under Section 143 (3) of the Act vide order dated 15th December, 2018 without disturbing the original income declared by the petitioner for the year under consideration. 2.8 On 30th March, 2021 a notice under Section 148 of the Act was issued by the Revenue Authorities upon the petitioner seeking, inter alia, reopening the case for the year under consideration. 2.9 On 26th April, 2021, apropos to the aforesaid notice, the petitioner filed return of income and further requested to supply copy of reasons recorded for reopening. 2.10 The Revenue Authorities vide letter dated 27th July, 2021 supplied copy of reasons for reopening, to which petitioner vide letter dated 25th August, 2021 raised ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow the petition as prayed for. 6. Per contra, learned advocate Mr. Karan Sanghani for the Revenue Authority, while justifying the impugned notice, made following submissions. 6.1 Learned advocate for the respondent, at the outset, submitted that the present petition may not be entertained being premature in nature as the Assessing Officer has not passed any adversarial order. He further submitted that in the event of any adversarial order, petitioner will have a statutory alternative remedy available to challenge the same before the Commissioner (Appeals) and thereafter before the Income Tax Appellate Tribunal. Accordingly, learned advocate for the respondent requested this Court to dismiss the petition. 6.2 Learned advocate for the respondent submitted that the Assessing Officer has taken care of all the necessary legalities prior to issuance of notice under Section 148 of the Act. He further submitted that the Assessing Officer has formed an independent opinion on the basis of materials available on record and thereby come to the conclusion that the petitioner has escaped the income. Accordingly, assumption of jurisdiction under Section 147 of the Act cannot be said to be a me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12,35,90,464/- situated at Plot No. 4, Final Plot No. 134, TPS 14 Gam - Pal Dist. Surat, and his share was Rs. 2,83,54,388/- and the assessee has claimed deduction U/s: 54F to the tune of Rs. 1,33,02,123/-. However, it is noticed that the assessee has furnished only a Sale Agreement without Possession and not furnished the supporting evidence to show that he has actually purchased a new residential property within the prescribed time as per the provisions of Section 54F of the I.T. Act, 1961. In view of the above, the assessee is not entitled for deduction U/s. 54F of the Act and Rs. 1,33,02,123/- claimed as deduction U/s. 54F in this regard is required to be added in the hands of the assessee. 4. Enquiries made by the AO as sequel to information collected/ received: As per Column (3) above. 1. Findings of the AO: As narrated above, the total income chargeable to tax escaped is worked out to Rs. 1,33,02,123/- for the AY. 2016-17 as the assessee has failed to fulfill the conditions as per the provisions of Section 54F of the Act. 6. Basis of forming reason to believe and details of escapement of income: The assessee had filed its return of income for AY 2016-17 on 31.03.2017 declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y supporting evidence. 9.2 In our considered opinion, the assessee-petitioner at the time of filing the original return and thereafter in the scrutiny, has already furnished the requisite details about the transaction of sale and purchase of immovable property and the working of capital gain along with all the necessary evidence. Thus, in our view, the Assessing Officer forming his opinion on the material already available on record and/or the material which were already considered by the then Assessing Officer, is nothing but a change of opinion. It is not the case of the Assessing Officer that new information and/or any tangible material has come into possession. Thus, in our view, forming any opinion based on same facts and circumstances which were then available with the Assessing Officer at the time of scrutiny is said to be change of opinion and thereby the same is not permissible. 10. The aforesaid view can be fortified from the decision in case of Kelvinator of India Ltd. (supra) . The relevant observations from the said decision is reproduced hereunder. 6. On going through the changes, quoted above, made to Section 147 of the Act, we find that, prior to Direct Tax Laws (Am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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