TaxTMI 
TaxTMI 
2025 (2) TMI 1085
X X X X Extracts X X X X
X X X X Extracts X X X X
....sons recorded for reopening of the assessment pertaining to exemption under section 2(14)(iii)(b) of the Act for sale of the agricultural land beyond 8 Kms from the Municipal Limit had already been considered during the course of regular assessment by the then Assessing Officer. 5. Brief facts of the case are as under: 5.1 The Petitioner is engaged in the business of trading in tobacco products. He is maintaining regular books of accounts which are subject to audit. The petitioner had filed his return of income for A.Y. 2013-14 on 27.09.2013 declaring total Loss of Rs. 44,98,327/-. The petitioner had also offered exempt income to the tune of Rs. 2,74,44,146/-. 5.2 The Respondent No.1 has issued impugned notice u/s 148 of the Act on 27.03.2021 proposing to reassess the total income of the Petitioner for A.Y. 2013-14. The petitioner filed the return of income in response to the notice u/s 148 on 19.05.2022 declaring total Loss of Rs. 30,52,442/-. 5.3 The Respondent No.2 furnished the copy of reasons recorded for reopening vide letter dated 03.11.2021. The Petitioner by letter dated 17.11.2021 had filed a reply in response to the impugned notice, raising objections to the impugned....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ltural land u/s 2(14)(iii). It is the say of the petitioner that it is clear that reopening of the case upon same issue is nothing but change of opinion. Once an opinion is formed by the AO then such case cannot be reopened for review under the garb of provisions of Section 147, This being sheer change of opinion, the assessment proceedings initiated by the AO wholly illegal, unlawful and without jurisdiction. Being aggrieved, the petitioner approached this Court by way of present petition. 6. Learned advocate Mrs. Chavda for the petitioner submitted that the issue with regard to exemption claimed by the assessee under section 2(14)(iii)(b) was discussed threadbare during the course of assessment. As there was a difference of opinion between the assessee and the Assessing Officer, the assessee also filed an application seeking direction under section 144A of the Act on 16.12.2015 and after considering the submissions made by the petitioner, order dated 01.01.2016 was passed by the Joint Commissioner of Income Tax Bench-II, Ahmedabad, under section 144A of the Act directing the Assessing Officer to follow the Notification No. 9447 dated 06.01.1994 issued for the purpose of sub-clau....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pality limits. 7. It is submitted that in view of the above facts, the provisions of clause (c) of explanation (2) to Section 147 are applicable to facts of the present case and the assessment year under consideration is deemed to be case where income chargeable to tax has been escaped in assessment. It is evident from the above discussion that in this case, the issue under consideration were never examined by the Assessing Officer during the course of regular assessment, and thus it is important to highlight here that material facts relevant for the assessment on the issue under consideration were not filed/disclosed during the course of the assessment proceedings and the same may be embedded in annual report, audited P&L Account, balance sheet and books of account in such a manner that it would require due diligence by the Assessing Officer extract this information and therefore, it is not a case of change of opinion by the Assessing Officer. 8. It is submitted that the case was reopened as per the procedure after recording of satisfaction and taking approval of the competent authority, hence it cannot be said that the case was reopened in mechanical manner, as the main reaso....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t is clear that the AO has applied his mind when re-opening the case." 9. Referring to the aforesaid averments, it was submitted that the Assessing Officer, after considering the facts of the case, has formed reason to believe that income has escaped assessment, as the claim under section 2(14)(3)(b) of the Act is not admissible in the facts of the assessee regarding sale of the agricultural land as the same is within 8 Kms from the municipal limit. 10. Having heard learned advocates for the respective parties and considering the facts of the case, it is not in dispute that the issue with regard to exemption as claimed by the assessee relying upon the provision of section 2(14)(iii)(b) has already been considered by the Assessing Officer and the reference was also made to the higher authorities under section 144A of the Act for opinion and considering the order passed under section 144A of the Act. The Assessing Officer did not make any addition while passing assessment order under section 143(3) of the Act. 11. In view of the undisputed facts, merely by recording the same reasons on verification of records that the assessee had sold the agricultural land claiming exempt income ....