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2019 (10) TMI 89 - HC - Income TaxReopening of assessment u/s 147 after 4 years - Change of opinion - validity of reason to believe - HELD THAT:- In this case, it is relevant to note that neither the notice issued under section 148 nor the proceedings stating the reasons for reopening the assessment, has alleged anywhere that the assessee has failed to disclose fully and truly any material facts necessary for assessment. On the other hand, perusal of the reasons stated for reopening would only show that the AO wanted to change his opinion already arrived on the materials available on record. The decisions relied on by the learned standing counsel for the respondent which were rendered prior to 1989 Amendment, in my considered view, neither can be applied to the facts and circumstances of the present case nor would help the revenue in any manner, in view of the fact that in the subsequent decision rendered in Kelvinator's case [2010 (1) TMI 11 - SUPREME COURT] the law is now well settled by the Apex Court Therefore, the law laid down by the Apex Court in Kelvinator's case is squarely applicable to the facts and circumstances of the present case and thus, the reopening is bad as the same is not permissible, based on change of opinion. Consequently, the revenue cannot escape from the clutches of limitation. Such being the position, the reopening notice issued after the period of four years is undoubtedly, barred by limitation There is no dispute to the fact that the reasons for reopening were based on two heads namely, "Asset Written Off and Factory Land Development Charges". It is not the case of the Revenue that the amount referable to those two heads were not at all shown in the profit and loss account. Assessee along with the return enclosed trading profit and loss account wherein the above two heads were specifically shown with the referable quantum of amount. Therefore, it is evident that the materials relevant to subject matter in issue for reopening, are already on record before the Assessing Officer. After perusing the return filed along with its enclosures, the Assessing Officer completed the assessment. Therefore, there is every reasonable presumption that the Assessing Officer has accepted the materials filed with returns except to the extent where he differed and stated so in his assessment order. If the issue is not specifically raised in the assessment order, it cannot be automatically presumed that such issue was not at all considered in the original assessment order. Consequently, if the Assessing Officer chooses to reopen the assessment based on such available materials, it would certainly amount to change of opinion only and cannot be called as an issue not raised or discussed, as contended by the learned counsel for the Revenue. Question as to whether the reasons for reopening the assessment would amount to change of opinion or not is to be considered and decided on the facts and circumstances of each case and therefore, the view expressed in one case based on the facts and circumstances of that particular case cannot be applied to another case to contend in either way, unless the facts and circumstances of both cases are one and the same. In other words, the question of change of opinion has to be considered and decided on case to case basis. Reopening of the assessment is bad in law as the same does not meet and satisfy the statutory requirement contemplated under Section 147 - Decided in favour of assessee.
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