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TMI Blog2024 (12) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... made in respect thereof. Clearly, an opinion was formed on the issue of advance received from SRSR. Having satisfied with assessee s submissions, in this regard, Ld. AO chose not to make any addition in that respect. The same is further evidenced by the fact that the aforesaid order was subjected to revision u/s 263. The revisionary authority, upon perusal of case records, flagged issue only with respect to another entity M/s Pacific Chennai Infrastructure Pvt. Ltd. However, no discrepancy was noted with respect to transaction carried out with SRSR. In such a case, the second reopening was nothing but triggered on mere change of opinion which is impermissible in law. Addition u/s 68 - We concur with the adjudication of Ld. CIT(A) that the assessee had duly discharged the onus u/s 68 to establish the identity of the lender, its creditworthiness as well as genuineness of the transactions. The debt was settled subsequently and no case of addition u/s 68 could be made out against the assessee. No addition could be made merely on the basis of suspicion, conjectures and surmises. Therefore, we see no reason to interfere in the impugned order on merits also. - Hon ble Shri Mahavir Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yze whether it was a full true disclosure. Both these conditions, true full are to be cumulatively met by the assessee. If one ingredient is lacking then the conditions laid down in the provision is not satisfied. In the present case there is no doubt at there is a full disclosure but the same was not true. Therefore, the order of the ld. CIT(A) is not acceptable. 5. In view of the facts and circumstances, since monetary limit i.e., Rs. 16,42,19,938/- exceeds the prescribed limit as per the Board's Circular No.3/2018. In F.No.279 /Misc.142/2007-ITJ (Pt.), second appeal is suggested on this issue As is evident, the revenue is aggrieved by quashing of reassessment proceedings. The revenue also assail relief given by Ld. CIT(A) on merits. 2. The Ld. CIT-DR advanced arguments supporting the case of Ld. AO whereas Ld. AR pleaded that there was no tangible material before Ld. AO for arriving at a belief of escapement of income. It was on mere change of opinion. The Ld. AR also submitted that there is no material with revenue to make impugned additions and the additions have been made on mere suspicion, conjectures and surmises. The case was put up for clarification which was duly res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and his father. Out of total inward money of Rs. 30 Crores, a sum of Rs. 25.11 Crores was paid to the assessee as an advance. The issue regarding above money transaction was not covered while completing the original assessment since the information was received subsequently. The same require examination and therefore, a belief of escapement of income was formed and notice u/s 148 was issued to the assessee. 3.4 The assessee filed reply on 06-04-2015 demanding reasons for reopening. Again, vide letter dated 10-07-2015, the assessee offered original return of income as filed earlier. The assessee also drew attention to the fact that despite request, reasons for reopening were not supplied to the assessee. However, Ld. AO, vide notice dated 20-08- 2015 demanded certain details from the assessee. The assessee, vide letter dated 04-09-2015, submitted that complete details of all the transactions with details of money flow from his account to various persons / companies during FY 2007-08 was already furnished in earlier proceedings. The assessee vide another letter of same date, assailed assumption of jurisdiction of Ld. AO. The assessee pleaded for dropping of proceedings in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions raised by the assessee. The Hon ble High Court of Madras in the case of Jayanthi Natarajan (401 ITR 215) categorically held that in case the objections were not disposed-off by way of speaking order then it amounts to violation of natural justice and the assessment proceedings are vitiated as null and void. The present case was on identical facts. 4.2 On merits also, Ld. CIT(A) held that the assessee satisfactorily explained primary ingredients of Sec.68 by establishing the identity of the creditor, the capacity of the creditor to advance the money and genuineness of the transactions. The assessee, in first reassessment proceeding, clearly established all the above ingredients. The Ld. AO on 26-02-2013 and 12-03-2013 specifically required the assessee to clarify and confirm the credit so received from SRSR. The assessee placed all the details so called for in this matter. The fact that transaction flowed from DB Hospitality Pvt. Ltd. to SRSR was already known to Ld. AO even at initial proceedings and it was not a new matter. The assessee received amounts though cheques and Ld. AO had examined the bank statements in earlier proceedings. When the basic and primary onus was estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was formed on the issue of advance received from SRSR. Having satisfied with assessee s submissions, in this regard, Ld. AO chose not to make any addition in that respect. The same is further evidenced by the fact that the aforesaid order was subjected to revision u/s 263. The revisionary authority, upon perusal of case records, flagged issue only with respect to another entity M/s Pacific Chennai Infrastructure Pvt. Ltd. However, no discrepancy was noted with respect to transaction carried out with SRSR. In such a case, the second reopening was nothing but triggered on mere change of opinion which is impermissible in law. Another fact is that assessee s objections to reopening has not been disposed-off by Ld. AO either in assessment order or by way of separate speaking order which run contrary to settled legal proposition as laid down by Hon ble Supreme Court in the case of GKN Driveshafts (India) Ltd. (125 Taxman 963) which has been followed by Hon ble High Court of Madras in the case of Jayanthi Natarajan (401 ITR 215) to quash reassessment proceedings on identical facts. The case law of Hon ble Supreme Court in the case of Techspan India Pvt. Ltd. (92 Taxmann.com 361) also su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has reason to believe that income has escaped assessment, confers jurisdiction to re- open the assessment. Therefore, post-1st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words reason to believe .. 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. 6. 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 precondition 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 take place. 7. One must treat the concept of change of opinion as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the forma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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