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2024 (3) TMI 1209 - BOMBAY HIGH COURTValidity of reopening of assessment - clandestine and unaccounted sales - Reason to believe - absence of power to review - report of the Directorate General of Goods and Service Tax Intelligence relied upon to conclude that there was a large-scale suppression of sale by the petitioner and therefore assessee had not offered sales to tax in its return of income, thus addition of gross profit at the rate of 1% to the income of the business and profession of the assessee - HELD THAT:- Notice giving the reasons for reopening the assessment in the case of the petitioner does not indicate, that any new material has been found, but relies upon the same material and same set of facts as were prevailing, when the earlier order of assessment dated 28.12.2018 was made. The entire assessment order was based upon the report of the Directorate General of Goods and Services Tax Intelligence, based upon which respondent no. 2, had assessed the income of the petitioner as indicated above. The same report has been considered as a reason for re-opening the assessment in the impugned order, which clearly would indicate that it was not a case of mistake, but was a change of opinion, as the same material, which cannot be sustainable in law. Though reliance is also placed on the amended section 147 of the Income Tax Act, it does not assist her case for two reasons, (i) the amendment having been brought into effect from 1.4.2021, cannot be applied to the case of the petitioner and (ii) even otherwise, though the expression “reason to believe has been deleted therefrom, what has been held in Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT] regarding the concept of “change of opinion” being treated as an in-built test to check abuse of power by the Assessment Officer, in absence of power to review, would continue to hold the field. Reopening notice set aside - Decided in favour of assessee.
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