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2023 (8) TMI 571 - HC - Income TaxReopening of assessment u/s 147 - change of opinion - reassessment opened after four years - HELD THAT:- This Court must ask the question whether the allegation that there is failure to disclose material fact fully and truly should be stated in the exact words that are found in the statute, and then the answer is obvious. In law it is not mere repetition of the requirement in the exact words but a disclosure of the requirement as would be justified in the facts and circumstances of the case. It is obvious that the respondent alleges that the material facts are detected in scrutiny and survey proceedings under the relevant provisions of the I.T.Act. This Court must opine that the opening statement as extracted would satisfy the requirement of an allegation, and hence the petitioner cannot succeed on the ground that there is no allegation. As such, the petitioner is not granted any indulgence on the first ground. Reasons to believe - It is seen from the records, as enclosed to this writ petition, that the petitioner’s transaction for the subject land with M/s. SSS Realty and Co. is declared in the returns filed and it would be useful to refer to the different notes where there is a reference not just to the Revaluation Reserve as mentioned consequent to the transaction, but the transaction itself. If the AO has repeatedly asked pointed questions and clarifications about the transaction in the light of the declarations made in the Returns, but without additions while framing assessment u/s 143(3) there must be a presumption that the Assessing Officer has applied his/her mind and has framed an opinion. In this regard, a useful reference could be made to the decision of Kelvinator of India Ltd. [2002 (4) TMI 37 - DELHI HIGH COURT] wherein it is exposited that in terms of Clause (e) of Section 114 of the Indian Evidence Act 1872, the judicial and official acts have been regularly performed. If repeated and detailed queries are asked after the issuance of notice under Section 143(2) of the I.T.Act but without any addition, or disallowance, there is a deemed opinion and reassessment is proposed despite such opinion. It would be a case of change in opinion, and in that event reassessment would be impermissible. In the fact and circumstances of this case, this Court must opine that the respondent’s reasons to say that there is no change in the opinion because the details were not available until there was a scrutiny and survey proceedings, cannot be accepted and the proposed reassessment is based on clear change in opinion. Decided in favour of assessee.
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