TMI Blog1996 (6) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to as " the Act "). In Special Civil Application No. 1190 of 1995 for the assessment year 1993-94, notice vide annexure " D " dated February 3, 1995, came to be issued by the Assessing Officer under section 148 of the Act. The notice is issued on identical facts which are referred to in Special Civil Application No. 1189 of 1995. Except the change in figures, we find no changes. At the request of learned counsel, we have heard both the matters together and have disposed of them by a common judgment. The short facts of the case as they emerge from Special Civil Application No. 1189 of 1995 are as under : The company submitted the computation of income for the assessment year 1992-93, vide annexure " A " and claimed deduction of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out that the company is not engaged in financing business or dealing in foreign exchange. With regard to excise duty, it was pointed out that the petitioner-company has claimed deduction under section 43B of the Act in respect of excise duty with respect to closing stock of cloth and engineering components on the ground of payment of excise duty amounting to Rs. 10,06,50,438. It was pointed out that the petitioner-company has inventory of yarn of Rs. 20,73,76,667 cloth of Rs. 39,77,43,368 and of engineering components of Rs. 21,33,34,204 as on March 31, 1992. This inventory includes excise duty paid by the company on yarn purchased by the company and lying in the closing stock in the heading of yarn, of cloth and engineering compon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 201 ITR 800. In paragraph 4.8 of the assessment order, the Assessing Officer has, after considering the submissions made by the assessee and having gone through the decisions, held that the assessee is not a banking company and is not engaged in the business of purchasing foreign exchange or dealing in the same by entering into forward exchange contracts. After following the decisions of the apex court, the Assessing Officer held that there is no transfer of a capital asset on cancellation of the forward exchange contracts. Even with regard to the claim of the assessee for deduction of excise duty, in paragraph 4.10 of the assessment order, the Assessing Officer has considered the decisions pointed out by the assessee, and particularly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd truly all the material facts necessary for his assessment. In the reasons, there is nothing to indicate that the Assessing Officer in consequence of information in his possession has reason to believe that the income has escaped assessment. It is well known that the Assessing Officer is entitled to act on information received after the original assessment. Such information may have been gathered from the record of assessment itself. The Assessing Officer cannot take any action under this section merely because he happens to change his opinion or to hold an opinion different from that of his predecessor on the same set of facts. From the assessment order, it clearly appears that the Assessing Officer applied his mind to the computation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal aspect and following the judgments of the apex court and of this court assessed the assessee. In reply, the respondent has not dealt with the specific contention raised by the assessee that it has fully and truly disclosed all the relevant facts. Even before this court it was not suggested by learned counsel for the Revenue that relevant facts for assessment have been concealed or have not been fully and truly disclosed. In our opinion, it is a mere change of opinion and that would not amount to escapement of income. On this ground, these petitions are required to be allowed and are hereby allowed. Notices issued under section 148 annexure " D " dated February 3, 1995, in both the special civil applications are hereby quashed and set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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