TaxTMI 
TaxTMI 
2019 (8) TMI 737
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....t for the A.Y. 2013-14 as well as the order disposing the objections dated 10/07/2018 (Annexure-H). 3.00. Facts leading to the present petition, in nutshell are as under :- 3.01. The petitioner filed its return of income for the A.Y. 2013-14 on 30/09/2013 declaring total income of Rs. 41,87,350/-. During the assessment proceedings u/s.143(3), notice under section 142(1) was issued for information required vide letter dated 7/11/2014 by the A.O. The petitioner was called upon to furnish the details. The petitioner submitted reply dated 20/5/2015 and 24/6/2015 and submitted the details including copy of the sale deed, return of income for the A.Y. 2014-15 and other relevant documents. Thereafter, assessment order under section 143(3) of the Act passed on 13/7/2015. The respondent issued notice under section 148 dated 27/3/2018 stating that income had escaped assessment for the A.Y. 2013-14 and asked the petitioner to file the return. The petitioner requested for copy of the reasons recorded and thereafter respondent vide letter dated 14/5/2018 supplied copy of the reasons to the petitioner. The petitioner raised objections to the notice under section 148 through Chartered Accou....
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.... has power to reopen the assessment, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. The reasons must have a live link with the formation of belief. In support of his above submission, he has relied upon the decision of the Supreme Court in the case of Commissioner of Income-tax Versus Kelvinator of India, reported in [2010] 320 ITR 561 (SC). Relying upon the decision in the case of Priyanka Gems Versus Assistant Commissioner of Income-tax, reported in [2014] 46 taxmann.com 376 (Gujarat), it is submitted that in absence of any new tangible material available with the A.O., it is not open to the A.O. to change his opinion by issuing the notice of re-assessment. 4.04. Mr.Mehta, further contended that there is nothing to indicate that the AO has independently applied his mind to record the case to ascertain as to whether there is escaped assessment and the reopening is on the basis of conjectures and surmises. 4.05. Mr.Mehta, further contended that as per settled law merely having a reason to believe that income had escaped assessment is not sufficient to reopen the assessment. It is further contended that for i....
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....notice u/s.148. She contended that as the income escaped assessment, the notice u/s.148 is rightly issued. 5.02. Ms.Bhatt further contended that the present petition is pre-mature, as only notice u/s 148 rw.s. 147 has been issued and there is alternative efficacious remedy available with the petitioner by way of appeal before the CIT(A). Submitting accordingly, it is requested to dismiss the present petition. 6.00. Heard Mr.Sudhir Mehta, learned counsel for the petitioner and Ms.Mauna Bhatt, learned Senior Standing counsel appearing for the revenue at length and considered the material on record. 6.01. Short question which arises for determination in this petition is, whether the concept of "change of opinion" stands obliterated with effect from 1st April, 1989, I.e., after substitution of Section 147 of the Income Tax Act, 1961 by Direct Tax Laws (Amendment) Act, 1987? 6.02. To answer the above question, we need to note the changes undergone by Section 147 of the Income Tax Act, 1961 [for short, "the Act"]. Prior to Direct Tax Laws (Amendment) Act, 1987, Section 147 reads as under: "147.Income escaping assessment.-- If- [a] the Income-tax Officer h....
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....year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year)." 6.03. Considering the above, the Apex Court in the case of Kelvinator of India Ltd. (supra) observed and held in para 4 as under :- "4. On going through the changes, quoted above, made to Section 147 of the Act, we find that, prior to Direct Tax Laws (Amendment) Act, 1987, reopening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act [with effect from 1st April, 1989], they are given a go-by and only one condition has remained, viz., that where the Assessing Officer 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" failing which, we are afraid, 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. W....