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2019 (3) TMI 1607 - ITAT AMRITSARReopening of assessment u/s 147 - borrowed satisfaction - non independent application of mind - material/ information on record giving rise to a reason to believe escapement of income from assessment - HELD THAT:- There is nothing on record to show that the audit cell pointed to any factual inconsistency/s in the then AO’s reply dated 19.08.2011. There is also no contention to this effect. As it appears, therefore, the matter kept lingering and, finally, the incumbent AO issued a notice on 30.03.2013, i.e., the fag end of the limitation period, recording the same reason/s as stated in the audit memo dated 27.07.2010. That is, the audit cell prevailed and, again, as it appears, in view of a ‘large’ tax effect, calculated at ₹ 51.11 lacs. Not one of the four grounds raised per the audit objections was dropped, or the reasons otherwise supplemented, meeting the various reasons stated by his predecessor for the reopening being not valid, to indicate a fresh application of mind by the incumbent AO. It is, thus, on facts, a clear case of borrowed satisfaction, invalidating the same, as explained in Larsen and Toubro [2017 (3) TMI 1064 - SUPREME COURT] . Rather, as a perusal of the reply dated 19.08.2011 shows, the original assessment had been framed conscious of and having regard to the aspects brought forth by the audit party, taking a permissible view. It is, thus, also a case of change of opinion. The two infirmities are in fact inter-connected. The reopening of assessment is, in our view, thus, not valid in law, and the ensuing assessment, in consequence, without jurisdiction. Non-issue of notice u/s. 143(2) - There was no compliance of notice u/s. 148 by filing a return, as required by it, so that there was, on facts, no need in law to, in any case, issue a notice u/s. 143(2). We are, accordingly, not in agreement with the assessee on the second issue, also pressed before us. The same, however, becomes academic in view of our finding of the impugned assessment being without jurisdiction. - Decided against revenue
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