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TMI Blog2025 (4) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... el waives service of notice of rule on behalf of the respondent. 3. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the notice dated 27.03.2021 issued under section 148 of the Income Tax Act, 1961 (For short "the Act") for Assessment Year 2015-2016. 4. Brief facts of the case are that the petitioner filed original return of income for Assessment Year 2015-2016 on 30.11.2015 declaring total loss at Rs. 62,77,90,517/-. 5. The case of the petitioner was selected for scrutiny assessment and notices under sections 142(1) and 143(2) of the Act were issued by the respondent Assessing Officer calling upon various details from the petitioner. 6. The petitioner by reply d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (previous year Rs.301.05 million) relating to interest costs (with corresponding no user service fee income) in the statement of P&L during the year ended March 31, 2015 pertains to such check posts. In light of the above note, it can be seen that the assessee-company had not offered any income from the check posts on which notification form Government is pending for collection of user fee though these were capitalized (as per provisional certificate). Thus, considering the matching principal of accounting and since the check post is not operational for business of the assessee, expenditure, of Rs.214.14 million (including interest expenditure) incurred on such assets are not eligible for deduction as per the Section 36(1)(iii) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shah for the petitioner submitted that the impugned notice under section 148 of the Act was issued beyond four years and the petitioner has disclosed fully and truly all material facts relevant for the purpose of assessment. 13. It was further submitted that the respondent did not have any other information except the audited balance sheet and the details filed by the petitioner during the course of regular assessment. 14. It was submitted that relying on the Note No.32 of the auditor's report, the respondent could not have assumed jurisdiction to reopen the assessment as the petitioner had made entire disclosure at the time of filing of the return and therefore, the jurisdiction assumed by the respondent Assessing Officer is based upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the impugned notice is issued after analyzing all the facts and information from the case record as per the reasons recorded. 17. In support of his submission, reliance was placed on the following decisions : i) In case of Salem Provident Fund Society Ltd. v. Commissioner of Incometax reported in (1971) 82 ITR 367(SC). ii) In case of Gruh Finance Ltd. v. Jt. CIT reported in (2000) 243 ITR 482 (Guj). iii) In case of Bawabhai Singh v. DCIT reported in 253 ITR 83. iv) In case of Hemjay Construction Co. Pvt. Ltd. through Deenaben Yogeshbhai Shah v. ITO rendered in Special Civil Application No.19392 of 2018. 18. Reliance was also placed on decision of Hon'ble Apex Court in case of CIT v. Rajesh Jhaveri Stock Brokers (P) Ltd. repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued the impugned notice for reopening. It is not in dispute that the case of the petitioner was under scrutiny and after calling for information and considering the material available on record, the Assessing Officer passed the order under section 143(3) of the Act. It is also apparent from the facts of the record that the impugned notice is issued after four years and therefore, as per the proviso to section 147 of the Act, when the petitioner has disclosed fully and truly all material facts for the purpose of assessment and assessment order is passed after scrutiny under section 143(3) of the Act, no action could have been taken by the respondent Assessing Officer by assuming jurisdiction to reopen the assessment for the year under con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid, 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 precondition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of reopening 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....." 22. In view of the foregoin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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