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2023 (2) TMI 466 - BOMBAY HIGH COURTReopening of assessment u/s 147 - Reopening beyond the period of four years - Reasons to believe - loans/advances made to a sister concern(s)(Form 3CD) - HELD THAT:- The Supreme Court in Commissioner of Income-tax, Delhi Vs. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT] held that there was a difference between ‘power to review’ and ‘power to reassess’ under section 147 and that the AO had no power to review and that, if the concept of ‘change of opinion’ was removed, then, in the garb of reopening of the assessment, a review would take place. The issue of ‘Large Loans/Advances’, was not only raised during the scrutiny assessment, but the same was responded to specifically by the assessee, as seen from the clarifications dated 5 June 2017 and 16 August 2017, which finally led to passing of the Order under Section 143(3) In the present case from the record, and specifically from the reasons recorded, it is not justifiable as to what information was received by the assessing Officer and what was that issue or material that had not been considered by the assessing Officer during the scrutiny assessment proceedings. As between the date of Order of assessment, which is sought to be reopened and the date of forming of the opinion, in the present case, nothing new had happened. It is clear that there is neither a new information received nor has reference been made to any new material on record. It is an absence of an agreement between the Petitioner, Goel Ganga Developers Pvt Ltd and M/s Nancy Builders and Developers Ltd that the assessing Officer formed a basis for reopening the assessment. It is nobody’s case that there existed any such agreement, which ought to have been produced but was not produced. Rather AO intends to imply that in the absence of any such agreement, the benefit ought not to have been granted to the Petitioner in the scrutiny assessment. There cannot be any failure to disclose fully and truly, if there was no such document as such. This, in our opinion, is nothing but a change of opinion, which does not satisfy the jurisdictional foundation under Section 147 of the Act. - Decided in favour of assessee.
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