TaxTMI 
TaxTMI 
2022 (7) TMI 401
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....me material documents which were already available to the assessing officer at the time of scrutiny assessment, on the same issues on which queries were also raised by the assessing officer in course of scrutiny assessment and reply with all supporting documents to the queries raised in course of scrutiny assessment were filed by the assessee/petitioner and considered and allowed by the assessing officer though on those issues there were no discussion in the body of the assessment order ? Facts as appear from record available and annexed to the writ petition are hereunder: Assessment order under Section 143(3) of the Income Tax Act, 1961, relating to assessment year 2009-10, was passed on 30th December, 2011 being annexure P-5 to the writ petition. In course of the scrutiny assessment, it appears from record that queries were raised by the assessing officer with regard to claim of the assessee/petitioner under Section 35(2AB) of the Act and in response to the same petitioner had submitted before the assessing officer audited details of expenses incurred on reserves and development including auditor's certificates as appears at pages 44 to 48 of the writ petition. It als....
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....ioner after considering its reply and supporting documents submitted in response to the queries raised by the Assessing Officer in course of scrutiny assessment. Petitioner submits that the reasons disclosed in the recorded reason for re-opening of the assessment are not based on any new material facts which has come to the notice and knowledge of the Assessing Officer after the order of scrutiny assessment order passed under Section 143 (3) of the Income Tax Act or on the ground of suppression of any material fact or that the same were not disclosed by the petitioner in course of scrutiny assessment. Petitioner submits that once in course of regular scrutiny assessment, queries pertaining to the same claim were raised by the Assessing Officer and the reply to the same along with supporting material/documents were furnished by the assessee/petitioner and which were considered and accepted by the Assessing Officer after investigation in that event even if the assessing officer making no discussion in the body of the assessment order, it would be deemed to have been accepted by forming an opinion to allow the said claim of the petitioner and successor Assessing Officer cannot reop....
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....sing Officer to the Petitioner containing the reasons recorded for issuing the impugned notice also record the fact that during the regular assessment proceedings, the Petitioner has been asked to furnish details in support of the claim for exemption under Section 80IA/IB of the Act. The letter further records that the details sought for were furnished and it is now observed that there has been a disproportionate distribution of expenses between various units belonging to the Petitioner for claiming deduction under Section 80IA/IB of the Act. This is a further indication of the fact that the Assessing Officer had during the regular assessment proceedings for Assessment Year 200203 sought information in respect of the allocation of expenses and the explanation offered by the Petitioner was found to be satisfactory. This is evident from query dated 27th December, 2004 and the Petitioner's response to the same on 25th January, 2005 explaining the manner of distribution of common expenses for delaying the process of claiming deduction under Section 80IA/IB of the Act. All this would indicate that Assessing Officer had formed an opinion while passing the order dated 9th March, 2005.....
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....he non-discussion of the same or nonrejection of the response of the assessee, would necessarily mean that the Assessing Officer has formed an opinion accepting the view of the Assessee. Thus an opinion is formed during the regular Assessment proceedings, bars the Assessing Officer to reopen the same only on account of a different view. 12. Thus we find that the reasons in support of the impugned notice is the very issue in respect of which the Assessing Officer has reaised the query dated September 25, 2017, during the assessment proceedings and the petitioner had responded to the same by its letters dated December 10, 2017 and December 21, 2017, justifying its stand. The non-rejection of the explanation in the assessment order would amount to the Assessing Officer accepting the view of the assessee, thus taking a view/forming an opinion. Therefore, in these circumstances, the reasons in support of the impugned notice proceed on a mere change of opinion. and therefore would be completely without jurisdiction in the present facts. Accordingly, the impugned notice dated March 27, 2019, is quashed and set aside. The aforesaid judgement of the Hon'ble Bombay High Court has....