TaxTMI 
TaxTMI 
1991 (3) TMI 99
X X X X Extracts X X X X
X X X X Extracts X X X X
....essment year 1980-81), the petitioner commenced construction and installation of a cold storage plant. The construction went on till March, 1980. During the year 1979, the petitioner did not have any income but only investment in the setting up of the said plant. For that reason, the petitioner says, he did not file a return for the assessment year 1980-81. The return for the assessment year 1981-82 was filed on September 14, 1981, in response to a notice under section 139(2) of the Act. Thereafter, on October 16, 1981, the petitioner also filed a nil return for the assessment year 1980-81. Along with this return, the petitioner says, he filed a number of documents, showing particulars of the investment during the relevant previous year. O....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... assessment year. Accordingly, the said unexplained investment has to be included in the assessment for the assessment year 1980-81. Necessary remedial action would, therefore, have to be taken for including the said income in that assessment year. It is in pursuance of the above observations made in the assessment order relating to the assessment year 1981-82 that the impugned notice under section 148 was issued for the assessment year 1980-81. The notice is dated July 22, 1988, which the petitioner says was served upon him on August 9, 1988. The petitioner says that, since the notice did not contain any reasons, nor did it indicate to which clause of section 147 it was relatable, it wrote a letter on August 17, 1988, to the Assistant Com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g and also installed machinery in it. The appellant was required to show the investment in it. The appellant had given in writing that since the building is still under construction the investment in the building should be considered in the year in which the construction is completed." Thereafter, particulars regarding reference to the Department Valuation Cell are referred to and then it is stated that, from the said circumstances, it is clear that the assessee has not made full disclosure of the investment made by him and that his books of account are not correctly maintained. It is observed that an amount of Rs. 9,38,570, the undisclosed investment, is liable to be treated as the assessee's income for the assessment year 1980-81 under s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Brothers which is regularly assessed to tax in this ward. There is a loan of Rs. 8 lakhs from the Bank of Baroda for which a bank certificate has been furnished. The deposit of Rs. 7,900 in the name of Swarup Agro Machinery has also been explained satisfactorily because this is assessed to tax in D-ward, Bareilly. Various copies of accounts have been furnished and placed on record. As there was no business activity, assessment is completed on Nil income in the status of a registered firm. Claim for registration has been allowed, vide my separate order of even date. Issue notice of demand." We must mention another fact before dealing with the merits of the case. The "reasons" set out in the counter-affidavit refer to a request made by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fter considering his objections. The question is whether reopening of the assessment on the basis of such a report is impermissible. It is beyond doubt that the impugned notice is relatable to clause (a) of section 147, as it stood at the relevant time, and not to clause (b). Learned counsel for the petitioner-assessee argues that this is a case of a mere change of opinion. He submits that the Commissioner of Income-tax was of the opinion, at the time of completing the assessment for the assessment year 1980-81, that the cost of construction should be considered in the assessment year 1981-82, which opinion he has now changed. He now wants to include the cost of construction in the assessment year 1980-81 on the basis of such change of opi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssing Officer, satisfactory, the value of the investments may be deemed to be the income of the assessee of such financial year." "69B. Where in any financial year the assessee has made investments or is found to be the owner of any building, jewellery or other valuable article and the Assessing Officer finds that the amount expended on making such investments or in acquiring such bullion, jewellery or other valuable article exceeds the amount recorded in this behalf in the books of account maintained by the assessee for any source of income, and the assessee offers no explanation about such excess amount or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the excess amount may be deemed to be t....