2014 (4) TMI 172

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....for the assessment year 2009-10. The same was finalized vide assessment order dated 02.12.2011. During the course of assessment, the Assessing Officer has sought the details of the share-holders and the same was taken into consideration while finalizing the assessment. A notice under Section 148 of the Act for re-assessment was issued on 25.03.2013. The reasons recorded by the Assessing Officer issuing the said notice are contained in Annexure P-17 reads as under:- "Reasons for issuing notice u/s 148 in the case for A.Y. 2009-10 Dated- 25.03.2013 Return declaring loss of Rs.5,08,536/- was filed on 30.09.2009. Assessment u/s 143(3) of the Act was completed on 02.12.2011 at a loss of Rs.440536/-. Later on an information was received ....

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....other words, the Assessing Officer has admitted that the petitioner did not give any cash to Sh. S.K. Jain. It was also asserted that if any investment was made by Sh. S.K. Jain, the Income Tax Department should assess the amount in the hands of Sh. S.K. Jain and that the proceedings initiated against the petitioner are bad in law. In pursuance of such objections, the Assessing Officer has communicated on 18.03.2014 that re-opening of assessment is based upon information received from other sources is valid and re-assessment has to be carried out. Learned counsel for the petitioner referred to the judgments of the Hon'ble Supreme Court reported as (2010) 320 ITR 561 titled as 'Commissioner of Income Tax, Delhi Vs. Kelvinator of India Lim....

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....re-requisites of re-opening assessment as per the provisions contained in Section 147 of the Act. In the judgment referred to by learned counsel for the petitioner in Kelvinator's case (supra), the Hon'ble Supreme Court has said that mere change of opinion is not a "reason to believe" to re-open the assessment. The Hon'ble Supreme Court has drawn distinction between the 'power of review' and 'power to re-assess' wherein it has been observed as under:-  "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 pre-condition and if the concept....