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TMI Blog2025 (2) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... CE D.N.RAY Appearance: For the Petitioner(s) No. 1: Mrs. Pragati Pahwa, Advocate For Thakkar And Pahwa Advocates (1357). For the Respondent(s) No. 1: M.R. Bhatt & Co.(5953). For the Respondent(s) No. 1 & 2: Mr. Varun K. Patel (3802). For the Respondent(s) No. 3: Notice Served. ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mrs. Pragati Pahwa for Thakkar and Pahwa Advocates for the petitioner and learned Senior Standing Counsel Mr. Varun K. Patel for the respondent Nos. 1 and 2. 2. Though served, no-one appears for the respondent No.3. 3. Rule returnable forthwith. Learned Senior Standing Counsel Mr. Varun Patel waives service of notice of Rule on behalf of respondent Nos.1 and 2. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and details and opportunity of hearing after the required information is received by the petitioner from the respondent No. 2 -Assessing Officer. 6. The respondent No. 2 however, without providing the details and materials sought for by the petitioner which was relied upon by issuing notice under Section 148A (b) of the Act and without giving an opportunity of hearing passed the impugned order dated 31.03.2022 under Section 148A (d) of the Act and issue notice for reopening on the same date. 7. Learned advocate Mrs. Pragati Pahwa for the petitioner submitted that in the case of the petitioner for the Assessment Year 2017-18, the similar notice was issued and the petitioner has preferred Special Civil Application No. 19898 of 2021 which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of assessment order dated 12th December, 2018 passed u/s. 143 (3) of the Act in case of the petitioner assessee. 11. On perusal of the reasons recorded, the Jammu & Kashmir Bank has also given explanation and clarification from the Forex Department to the effect that the bank after receiving the bill from the party / customer, bill amount is firstly calculated on notional rate decided by the bank from time to time and finally at the time of realization of the bill, it is calculated on actual settlement rate/ exchange rate on that day. By giving an example of some other party, it was stated by the bank that the difference in the amount of the particular entry captured in the statement of account and remittance sheet is on accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner-company, wherein all details of foreign remittance are reflected. When such record was already available with the respondent Assessing Officer, which was produced by the petitioner assessee during the original assessment proceedings, he ought to have considered the same and applied his mind with regard to the material made available by the survey action under Section 133 of the Act, which was conducted on Jammu & Kashmir Bank coupled with the explanation tendered by the Jammu & Kashmir Bank reflected in the reasons recorded. 13. The contention of Mr. Varun K. Patel, learned Senior Standing Counsel for the respondent cannot be accepted as in the facts of the case, the case would be squarely covered by the decision of Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reassessment has to be based on fulfilment 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. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer….." 14. In view of above foregoing reasons, the present petitions succeeds and is accordingly allowed. The impugned show cause notices u/s.148 of the Act are hereby quas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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