TaxTMI 
TaxTMI 
2025 (6) TMI 494
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....the Income Tax Act, 1961 (for short 'the Act') as well as the order dated 10.12.2021 disposing off the objections against the reasons recorded. 5. The brief facts of the case are as under : 5.1. The petitioner filed return of income for Assessment Year 2016-17 on 05.08.2016 declaring total income of Rs. 5,60,630/-. 5.2. The case of the petitioner was selected for scrutiny and during the course of regular assessment proceedings, various details and explanations were called for which were submitted by the petitioner along with the reply dated 28.08.2018 in response to the notice dated 05.07.2018 issued under Section 142 (1) of the Act. 5.3. The Assessing Officer passed the assessment order dated 24.12.2018 under Section 143 (3) of the Act determining the total income of Rs. 59,87,810/-. 5.4. Thereafter, the impugned notice dated 28.03.2021 issued under Section 148 of the Act was issued to re-open the assessment for Assessment Year 2016-17. The petitioner filed return of income on 27.04.2021 in response to the notice for re-opening and requested for reasons recorded by the Assessing Officer. The Assessing Officer provided the reasons recorded along with the notice under....
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....bstantiated that during the year under consideration, the assessee has failed to offer any explanation about the nature and source of the investment amounting to Rs. 4,78,00,000/- Hence, it is found that income of Rs. 4,78,00,000/- for the year under consideration has escaped assessment within the meaning of section 147 of the I.T. Act." 5.5. The petitioner filed the objections dated 16th July, 2021 contending inter alia that the Assessing Officer could not have assumed the jurisdiction as the petitioner has furnished all the details and documents during the regular course of assessment along with the reply date 28th August, 2018 and therefore, the impugned reasons recorded are nothing but mere change of opinion. Reliance was also placed on the decision of the Apex Court in case of Commissioner of Income Tax, Delhi Versus M/s. Kelvinator of India Limited reported in 320 ITR 560 (SC). 5.6. The respondent-Assessing Officer, however, by the order dated 10.12.2021 disposed off the objections after considering objections raised by the petitioner on the ground that the petitioner did not provide a single document regarding source of Rs.32 Lakhs for purchasing Megh Malhar Bunglow Pl....
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....nd the respondent-Assessing Officer was therefor justified to have reason to believe that income has escaped assessment. 7.2. Learned Senior Standing Counsel Mr. Varun Patel invited the attention of the Court to the detailed verification report placed along with the affidavit-in-reply filed on behalf of the respondent to submit that the petitioner has not responded to the notice issued under Section 133 (6) of the Act and as such, the petitioner has remained negligent in inquiry proceedings. 7.3. In support of his submissions, reliance was placed on the following averments made in the affidavit-in-reply : "4. With reference to Para nos.2.1 to 2.2.1, the Respondent denies each and every allegation, averment and contention raised in these paras. It is submitted that in the present case there is no change of opinion as the expression "change of opinion" postulated formation of opinion and then a change thereof. In the context of section 147 of the Act, it implies that the assessing officer should have formed an opinion at the first instance i.e. in the proceedings u/s 143 (3) and later by initiation of the reassessment proceedings, the AO proposes or wants to take a dif....
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....stigations or by reasons of some information received by him, one cannot say that it constitutes mere change of opinion. The explanation (1) to the proviso laid u/s. 147 of the Act, states that mere production of account books from which material evidence could have been discovered by the Assessing Officer, will not necessarily amount to disclosure within the meaning of the proviso. Therefore, mere production of the Balance Sheet, P&L A/c or Account books will not necessarily amount to disclosure within the meaning of the proviso. If the Assessing Officer overlooked certain items at the time of passing the original order of assessment and he noticed it subsequently, he could not be said to have formed an opinion on the said items. In view of the above, it is clear that assessment can be reopened if any item went unnoticed in the assessment completed earlier. It is relevant to submit that Explanation-1 to section 147 clearly provides that production of account books or other evidence from which material evidence could with due diligence have been discovered by the AO would not amount to disclosure. It is noted here that opinion can only be formed on the issues which are dis....
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.... question. It is a result of understanding, experience and reflection. XXXX 12. Before interfering with the proposed re-opening of the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order is non-speaking, cryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposed re-assessment proceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in the re-assessment proceedings." In view of what is stated hereinabove, the petitioner's contentions of change of opinion and no untrue disclosure, are not sustainable in the eyes of law. 5. With reference to Para no.2.3.1, the Respondent denies each and ev....
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....e petitioner. 10. Therefore, we are of the opinion that when the petitioner has disclosed fully and truly all the material facts relevant for assessment during the course of the regular assessment proceedings, the respondent could not have assumed the jurisdiction to re-open the assessment for the year under consideration after expiry of four years and the reasons recorded by the respondent-Assessing officer is nothing but a mere change of opinion which could not have been the basis for forming a reason to believe that the income has escaped the assessment. 11. The Hon'ble Apex Court in case of M/s. Kelvinator (Supra) has held as under : "6. 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, re-opening 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, co....