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2024 (4) TMI 201 - HC - Income TaxValidity of Reopening of assessment based on order passed u/s 263 - reason to believe - scope of change of opinion - HELD THAT:- No notice can be issued u/s 148 of the Act unless there is ‘information’ with the AO that income chargeable to tax has escaped assessment. The only information forming the origin of reason to believe escapement of income from assessment is contents of the order passed by the CIT. In the light of the aforesaid admitted position, as on date the order passed by the CIT does not survive, as being set aside by the ITAT, the very basis of the AO to reopen assessment and assume jurisdiction is misplaced and unjustifiable. Attempt to reopen assessment is based on a ‘change of opinion’ or not? - Petitioner provided all the details as sought vide its reply dated 6th August 2018, which followed another letter by the AO seeking further information. Petitioner by its letter dated 26th September 2018 furnished further information as additionally sought by the AO. Thus, it is evident that Petitioner had disclosed completely and fully all relevant information to the satisfaction of the AO and the assessment order was passed. Be that as it may, the impugned notice is, in any case, based on the contents and findings of the CIT (International) Mumbai in his revision order, which order is already set aside by the ITAT. That the order passed by ITAT is subjected to a challenge before this Court does not aid the Department since there is no order passed by this Court staying the effect of the order. On the contrary, the AO himself has given effect to the ITAT order and passed an Order Giving Effect (“OGE”) to the ITAT order. In this view of the matter, the impugned notice is nothing but a ‘change of opinion’ by the AO and as held in Aroni Commercials Limited [2014 (2) TMI 659 - BOMBAY HIGH COURT] a reopening based upon change of opinion is impermissible in law. We agree with the submissions that if ‘change of opinion’ concept is given a go by, that will result in giving arbitrary powers to the AO to reopen assessments. It would in effect sanctify powers to review which he does not possess. We have no hesitation in holding that the notices issued u/s 148A(b), order passed u/s 148A(d) and notice issued under Section 148 of the Act to reopen the assessment for AY 2016–17 cannot be sustained. Decided in favour of assessee.
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