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TMI Blog2024 (10) TMI 1582X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent AO has assumed jurisdiction on perusal of the assessment record, in absence of any fresh tangible material which was not considered during the course of regular assessment proceedings which would amount to mere change of opinion. Therefore, as held in case of Kelvinator of India Ltd. [ 2010 (1) TMI 11 - SUPREME COURT] the AO could not have assumed the jurisdiction to reopen the assessment. In view of above settled legal position, the petition succeeds and is accordingly allowed. Impugned notice issued u/s 148 of the Act is hereby quashed and set aside. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE D.N. RAY Appearance: For the Petitioner(s) No. 1 : Mr B S Soparkar (6851). For the Respondent(s) No. 2: Appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of tax deducted at source and cash deposits. 9. Thereafter, notice under section 148 of the Act dated 31.03.2021 was issued upon the petitioner directing the petitioner to furnish the return of income for Assessment Year 2017-2018. 10. The petitioner accordingly filed its return of income in compliance of notice under section 148 on 24.04.2021 and sought for reasons recorded for reopening. 11. Accordingly, the copy of reasons recorded for reopening the assessment were supplied to the petitioner on 27.05.2021. Such reasons recorded read as under: 2. (A) On perusal of assessment records, it is seen from the information furnished by the auditor in column 34 (a) of form 3CD that the assessee has failed to deduct TDS/Deducted less TDS than sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent no.2 to first dispose off the objections. 15. Being aggrieved by the impugned notice, the petitioner has preferred the present petition challenging the impugned notice. 16. Learned advocate Mr. B.S. Soparkar for the petitioner submitted that the respondent Assessing Officer could not have assumed jurisdiction to reopen the assessment for the Assessment Year 2017-2018 as he has perused the same material which was considered by the Assessing Officer at the time of regular assessment while passing the assessment order under section 143 (3) of the Act on 22.11.2019. It was submitted that the queries were raised with regard to furnishing of the audit report as well as the details of Tax Deducted at Source during the course of the reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15) 64 taxmann.com 257 (Delhi) and iii) In case of Pushpak Bullion reported in 71 taxmann.com 326 (Guj.) 22. In support of his submission that order disposing objection is sine qua non before proceeding in assessment, reliance was placed on the following decisions: i) In case of Ashish Bohra reported in (2021) 129 taxmann.co, 52 (Gujarat). ii) In case of Bharatmaiya Memorial Foundation reported in (2018) 91 taxmann.com 25 iii) In case of Simaben Vinodrai Ravani reported in (2017) 394 ITR 778. iv) In case of Sagar Developers reported in (2016) 72 taxmann.com, 321(Gujarat). 23. It was further submitted that on perusal of the reasons, there is no escapement of income. 24. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x v. Kelvinator of India Ltd. reported in (2010) 320 ITR 561 (SC), the Assessing Officer could not have assumed the jurisdiction to reopen the assessment. The Hon ble Apex Court in case of Kelvinator of India Ltd. (supra) has held as under : 2. A short question which arises for determination in this batch of civil appeals is, whether the concept of change of opinion stands obliterated with effect from 1st April, 1989, i.e., after substitution of Section 147 of the Income Tax Act, 1961 by Direct Tax Laws (Amendment) Act, 1987? xxxx 6. prior to Direct Tax Laws (Amendment) Act, 1987, re-opening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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