AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (4) TMI 199
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....ment in the case of GKN Driveshafts (India) Ltd. V/s. Income Tax Officer and Others (2003) 1 SCC 72. 2. Briefly stated the material facts are as under: The Petitioner who is an individual claims that he was a salaried employee with M/s. Jaya Travels & Tours which was a partnership firm duly registered under the Indian Partnership Act, 1932. A return of income was filed by the Petitioner for the assessment year 2015-16 declaring a total income of Rs.6,26,910/-. The said return was processed under Section 143(1) of the Act and an intimation was issued in regard to the same to the Petitioner. A notice under Section 148 of the Act dated 31st March, 2021 was issued by the Respondents seeking to reopen the assessment for the assessment year 2015-16 on the ground that income had escaped assessment within the meaning of Section 147 of the Act. The Petitioner was directed to file a return in the prescribed form for the said assessment year within thirty days from the service of the said notice. The Petitioner states that in response to the said notice under Section 148 of the Act, the return of income was filed once again. The Petitioner also sought from Respondent No. 2, the reasons for....
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....rded for reopening are stated to be 'null'. It was therefore urged that if there were no reasons for supporting the belief of the A.O. that income had escaped assessment, then the action of reopening the assessment for the assessment year in question was nothing but an exercise undertaken arbitrarily and without complying with the jurisdictional requirement envisaged under Section 147 of the Act. It was further urged that even when the A.O. did not make any addition in regard to the cash loan of Rs.85 lakhs, which the A.O. alleged the Petitioner had received from M/s. Evergreen Enterprises during financial year 2014-15 on account of the explanation rendered by one of the partners of M/s. Evergreen Enterprises, yet the A.O. proceeded to initiate penalty proceedings under Section 271D of the Act for accepting the cash loan of Rs.85 lakhs in violation of the provisions of Section 269SS of the Act as the Petitioner had allegedly received a loan in cash for Rs.20,000/- or more contrary to the bar imposed under the said Section. It was thus urged that if the reopening of the assessment for the relevant assessment year was itself unsustainable, then the consequent action of the A.O. in i....
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.... the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief.............." 11. Equally settled is the principle of law that the legality of the reassessment proceedings has to be tested on the touch stone of the reasons recorded by the A.O. for such reopening. In the present case even when the Petitioner had demanded the reasons for reopening the assessment, no such reasons were furnished to the Petitioner which was otherwise an obligation cast upon the A.O. in terms of the judgment in GKN Driveshafts (India) Ltd. V/s. Income Tax Officer and Others. Interestingly the A.O. in the notice under Section 143(2) of the Act dated 30th June, 2021 has recorded the reasons as 'null' which to our understanding means that there were no reasons at all with the A.O. to support his belief that income ha....
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....ings under Section 147/148 of the Act." 13. Testing the facts of the present case on the touch stone of the judgments mentioned hereinabove, it can be seen that only if reasons had been furnished to the Petitioner that one could ascertain whether there was tangible material available with the A.O. for formation of his 'reason to believe' that the income had escaped assessment. In the absence of any new tangible material and assuming that there was any material with the A.O. though not disclosed, in the absence of and on account of the failure of the A.O. establishing a live link with such a tangible material, it cannot be said that the jurisdictional condition had been satisfied by the A.O. while proceeding to issue a notice under Section 148 of the Act. It can therefore clearly be held that the issuance of a notice under Section 148 of the Act in the absence of any new tangible material was nothing but an attempt to review the earlier order of assessment passed by the A.O. 14. The contention of learned Counsel for the revenue is that the extra ordinary writ jurisdiction need not be exercised by this Court, in the facts and circumstances of the present case, as there was an equa....