TaxTMI 
TaxTMI 
2014 (2) TMI 27
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....pecially the order sheets made after 21.05.1993. It is argued that the nature of queries sought in response to its reply do illustrate and clearly brings out that the Revenue wishes information with respect to a host of matters including deposits made by four concerns i.e. M/s. Maha Shveta Traders Ltd., M/s. Remico Testiles (P) Ltd., M/s. Marvex Enterprises (P) Ltd. and M/s. Prabhat Enterprises (P) Ltd. The Revenue had also put to the Managing Director of the assessee/petitioner during the course of assessment proceedings for the AY 1991-92, an affidavit of one Sanjay Dadhich. After considering the explanation, the assessee's returns were accepted and the Assessment Order framed under Section 143(3) on 20.09.1993. Upon receipt of the notice under Section 148 and the reply, the respondent authorities proceeded with the matter. Thereupon, claiming that the notice issued under Section 143(2) on 17.04. 1997 in the re-assessment proceedings was time-barred, this Court was approached under Article 226. In this proceeding the petitioner has also questioned the merits of the opinion. 3. The Revenue in its reply relied upon the reasons recorded for reopening assessment, made in the file ....
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.... by its persons in fictitious names. It has been also informed by Inv. Circle 2(1) that one of the recipient of the payment encashed against bearer cheques is Mr. Murli and this fact is established for the documents seized from the residence of its Managing Director, Sh.Sanjeev Pahwa. It has been further informed that the various facts gathered in the course of investigation clearly established the direct involvement of M/s. Ralson (India) Ltd. in the purchases of M/s. Panacea Drugs and Pharmaceuticals, a sick industrial unit, when Sh. Pahwa, the Managing Director of Ralson (India) Ltd. found cornered on account of the operation of bank overdraft account No. 772A he started foisting the entire blame on Sh. R.P. Majahan who was the financial controller of the company at the relevant time. Since this overdraft account was operated during the period when Sh. R.P. Mahajan was the Financial Controller of the company all the acts of omission and commission on his part are binding on this company. In view of the foregoing, I am of the opinion that an amount of Rs.89.50 lacs which was the amount of black money converted into deposits of four fictitious firms belongs to M/s. Ralson....
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....planations given in writing and after affording opportunity of hearing, the original Assessment Order was framed on 29.09.1993. Counsel emphasises that no new material was found and that the re-assessment was sought to be conducted only on the basis of an apparent impermissible ground. Learned counsel for the petitioner relied upon the decision of the Supreme Court reported in Commissioner of Income Tax Vs. Kelvinator of India Limited [2010] 320 ITR 561. It is argued that once certain material is considered by the Assessing Officer in respect of which an enquiry has been made, mere failure to record that the explanation was satisfactory would not constitute "reason to believe" justifying re-assessment proceedings. 6. This Court has carefully considered the submissions. There is no dispute that in this case the original assessment proceedings had not been finalized; at that stage on 13.09.1993, the petitioner's premises were subjected to raid, search and seizure operations. Based upon the materials which the Revenue came by in that operation, enquiries were raised in the assessment proceedings. A formal notice was issued on 21.05.1992; even the Managing Director of the assessee/p....
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....itrary powers to the Assessing Officer to reopen assessments on the basis of mere „change of opinion' which cannot be per se reason to reopen. We must also keep in mind the difference between power to review and power to re-assess. The Assessing Officer has no power to review, he has the power to reassess. But reassessment has to be based on fulfilment of certain pre-conditions and if the concept of change of opinion is removed, as contended on behalf of the Department, the, in the garb of reopening the assessment renew would take place. One must treat the concept of „change of opinion' as an inbuilt test to check the abuse of power by the Assessing Officer. Hence, after 01.04.1989, the Assessing Officer has power to reopen, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment." 10. The Full Bench decision in Usha International (supra) relied upon by the Revenue reiterates this aspect. 11. The court also notices that in Usha (Supra) there was no blanket proposition that omission to discuss or deal with material furnished in the course of original assessment proceedings, can result in formation of "reaso....