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TMI Blog2024 (12) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... ility partnership firm. The petitioner firm filed its return of income for Assessment Year 2016-17 declaring total income of Rs. 46,05,780/- on 30th September, 2016. 4.2 The case of the petitioner was selected for scrutiny and notice under Section 142 (1) of the Act was issued on 10.10.2018. The petitioner was called upon to furnish the details of loan outstanding at the beginning of the year, the loans taken during the year including the squared up loans in the prescribed format. 4.3 The petitioner submitted the reply on 10.12.2018 providing the details of the unsecured loan. The petitioner filed the another reply along with the confirmation statement and acknowledgment of income returns of the parties who have advanced the loan. The petitioner by letter dated 12.12.2018 also submitted the cross account of Shreenathji Corporation, confirmation account of Rahulkumar Babulal Doshi and bank statement of Phoolchand Exports Pvt. Ltd. before the Assessing Officer. 4.4 The Assessing Officer after considering the replies filed by the petitioner passed an Assessment Order under Section 143 (3) of the Act accepting the return of income on 12.12.2018. 4.5 The respondent issued the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular assessment proceedings, the respondent -Assessing Officer could not have assumed the jurisdiction to reopen the assessment on the same facts which were already disclosed in absence of any new material brought on record subsequent to the completion of the original assessment proceedings under Section 143 (3) of the Act more particularly, when the issue was thoroughly examined during the regular assessment proceedings. 5.1 It was further submitted that on perusal of the reasons recorded, it is clear that the respondent-authority has reopened their assessment on the ground to verify the unsecured loan from Phulchand Export Pvt. Ltd. as it has shown lost in the ITR during the year under consideration and therefore, the creditworthiness and genuineness of the unsecured loans was doubted. It was submitted that the petitioner has proved the genuineness by submitting ITR, confirmation and bank statement from the said party and the petitioner is not required to prove the source of the source and accordingly, the reopening only with a view to verify the source of source is not permissible as it would amount to mere change of opinion in the facts of the case. It was therefore, submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer is not required to base his belief on any final adjudication of the matter. The Assessing Officer had applied his mind and examined the information received and then recorded his reasons to believe that the income of assessee had escaped assessment for the year under consideration. 5. It is further submitted that the assessee's contention that no new tangible material is available to the Assessing Officer is erroneous and untenable in law and facts. It is further categorically denied the contention of the petitioner regarding change of opinion by the assessing officer while issuing the impugned notice. It is submitted that this Hon'ble Court in the case of Gruh Finance Ltd. Vs. Jt. CIT (2000) 161 CTR (Guj) 100: (2000) 243 ITR 482 (Guj) has held that if no conscious consideration of the material available on record is made and a mistake has been committed, it will not prevent the competent officer to exercise powers under section 147 of the Act. The Court observed: "We have also seriously considered the entire case law from which aforesaid paragraphs are relied on. Insofar as the expressions reason to believe" and "change of opinion" are concerned, we are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Hemjay Construction Co. Pvt Ltd through Deenaben Yogeshbhai Shah Vs. ITO, Ward-2(2) in R/SCA No. 19392 of 2018, has held that "merely because certain materials which is otherwise tangible and enables and Assessing Officer to form belief that the income chargeable to tax has escaped assessment, formed part of the original assessment record, per se would not bar the Assessing Officer from reopening the assessment on the basis of such material. The expression "tangible material" does not mean the material alien to the original record. "The Hon'ble Court has also held that "it is not necessary that the Income Tax Officer should hold a quasi-judicial inquiry before acting under Section 147. It is enough if he on the information received believes in good faith that the assessee's profits have escaped assessment or have been assessed at a low rate." It is further submitted that the reasons recorded or the material available on record must have nexus to the subjective opinion formed by the A.O. regarding the escapement of the income but then, while recording the reasons for the belief formed, the A.O. is not required to finally ascertain the factum of escapement of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner containing the confirmation letter, ITR and the bank statement of the said party from whom the unsecured loans was availed by the petitioner. 8.1 The Assessing Officer having been satisfied from the details provided by the petitioner, it cannot be said that there is any failure on the part of the petitioner to disclose fully and truly all material facts. 8.2 It was further revealed from the facts of the case that merely because Phulchand Export Pvt. Ltd has incurred loss for the year under consideration, it cannot be the ground to reopen the assessment doubting the creditworthiness and genuineness of the unsecured loan such as having sufficient surplus savings and funds booked by capital assets to provide loan to the assessee. 9. The law is well settled with regard to the facts of the case . Once the issue is already scrutinized during the regular course of assessment, the same issue cannot be considered for assumption of the jurisdiction to reopen the assessment as it would amount to mere change of opinion 10. The Hon'ble Apex Court in case of Commissioner of Income tax v. Kelvinator of India Ltd. reported in (2010) 320 ITR 561 (SC) has held as under:- "6. ............pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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