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2017 (1) TMI 728 - HC - Income TaxValidity of reopening of assessment - valid reasons to believe - review v/s reassessment - Held that:- It is a settled position in law that a reopening of assessment has to be done only by the Assessing Officer based on his reasonable belief that income chargeable to tax has escaped assessment. This satisfaction of the Assessing officer has to be disclosed /made explicit in the reasons recorded and the same cannot be a subject of speculation and /or drawing inferences. Any improvement in the reasons recorded as sought to be done by oral submissions on the basis of the affidavit in reply of the Commissioner of Income Tax Mr. K.K. Deb Burman dated 12 May 1988 has to be ignored. The reasons as recorded can alone be subjected to examination, to determine whether it supports the belief that income chargeable to tax has escaped assessment. On minute examination of the reasons recorded, we find that even when reasons recorded are read as a whole, it does not indicate that there has been a failure on the part of the petitioner to disclose fully and truly all facts necessary for assessment. Nor does it state that there has been any misrepresentation on the part of the petitioner. It is on reexamination of the seized diaries(A1 to A6) alone, without any fresh material which points to the falsity of the diaries(A1 to A6). Therefore when we examine the reasons recorded, without the aid of the affidavit in reply dated 12 March 1988 of the Commissioner of Income Tax, it clearly indicates a change of opinion on the same set of facts. Thus it is a clear case of the Assessing officer seeking to review his decision taken during the earlier assessment/ reopening assessment and not a case of reassessment. In the present facts, it is not the case of the Revenue that any material evidence which was a part of the seized six diaries (A1 to A6),was not brought to the notice of the Assessing Officer, and it does not mention which material relied upon by the Petitioner during the assessment proceedings, had led the Assessing Officer to conclude that the Petitioner is only a finance broker and not a financier. In fact the reasons recorded in this case does not even remotely indicate that any part of the evidence being relied upon to issue the impugned notices were not brought attention to by the petitioner during earlier assessment proceedings for the very assessment years which are sought to be reopened. - Decided in favour of assessee
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