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2024 (3) TMI 40 - HC - Income TaxValidity of reopening of assessment - notice issued after expiry of four years - change of opinion - applicability of section 73 - HELD THAT:- The reasons recorded to believe that there is escapement of income from assessment does not even make an allegation that there was failure to truly and fully disclose material fact. On this ground alone, in our view, the notice issued under Section 148 of the Act impugned in the petition has been quashed and set aside. Moreover, the fact that Section 73 of the Act was a subject matter of consideration during the assessment proceedings, also cannot be disputed. This is because in the order rejecting Petitioner’s objections, there is an admission that Section 73 of the Act was discussed during the assessment proceedings. Moreover, in the letter dated 29th February 2016, Assessee has elaborately discussed as to why Section 73 of the Act is not applicable. In fact, in the said letter even the explanation of Section 73(4) of the Act has also been extracted. Therefore, it is clear that the applicability of Section 73 of the Act was a subject of consideration during the assessment proceedings and as held by Aroni Commercials Limited (2014 (2) TMI 659 - BOMBAY HIGH COURT), once a query is raised during the assessment proceedings and Assessee has replied to it, it follows that the query raised was a subject of consideration of the AO while completing the assessment and it is not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. It would, therefore, follow that the reopening of assessment is merely based on the basis of change of opinion which does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment. Decided in favour of assessee.
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