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2020 (3) TMI 1117 - HC - Income TaxReopening of assessment u/s 147 - reasons for re-opening the assessment - deduction u/s 80JJAA as claimed by the petitioner - change of opinion or not? - HELD THAT:- Whether the notice that has been issued to the petitioner was on account of change of opinion or on account of failure on the part of the petitioner to fully and truly disclose all material required for the assessment is to be determined by the Assessing Officer while passing order under Section 147 of the Income Tax Act, 1961. In the facts of the case, though the petitioner had furnished certain details at the time of re-assessment, the question still remains to be answered is whether there was full and true disclosure by the petitioner as is contemplated under proviso to Section 147 of the Income Tax Act, 1961. In this case, mere filing to the annexure by the petitioner in response to notice during scrutiny assessment by itself may or may not have been sufficient to come to the conclusion that there was full and true disclosure by the petitioner if the information furnished was neither complete nor true. It is therefore best left open for the petitioner to demonstrate before the 1st respondent that the details furnished by the petitioner vide letter dated 03.03.2016 in annexure 2 meets the requirements of full and true disclosure for the Assessing Officer to drop the proceedings in terms of 1st proviso to Section 147 of the Income Tax Act, 1961. In case there is a change of opinion, the 1st respondent cannot proceed in the light of the decision of the Hon’ble Supreme Court in CIT Vs. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT] In case indeed there is a mere change in opinion, the 1st respondent will be obliged to drop the proceeding. However, to ascertain whether is a mere change of opinion or not first it has to be established that the there was true and full disclosure by the petitioner. This can be demonstrated by the petitioner only before the 2nd respondent and not in a proceeding under Art.226 of the Constitution of India as scope of judicial review is limited and it is not possible to conduct roving enquiry on facts. Under these circumstances, do not find any merits in quashing the impugned notice dated 13.03.2017 and the communication dated 24.11.2017 overruling the objection of the petitioner. Relegate the petitioner to participate in the proceedings before the 1st respondent by filing appropriate representations/objections within a period of thirty days from the date of receipt of a copy of this order. The 1st respondent is obliged to pass orders on merits in accordance with law. It is made clear that in case the circumstance do not justify invocation of proviso to Section 147, the 1st respondent shall drop the proceedings. At the same time, while passing orders under Section 147 of the Income Tax Act, the 1st respondent can pass assessment order as per Explanation 3 to Section 147 of the Income Tax Act, 1961.
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