TMI Blog2008 (7) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... and void on the basis of the change of opinion because the earlier assessment has only been passed by making various enquiries and also after issuing notices under s. 142(1), dt. 4th Dec., 2002 as well as 2nd Sept., 2003 and as such, the whole assessment is merely a change of opinion on the basis of the facts already disclosed and the books of account of the appellant were also duly audited." 3. The briefly stated facts are that the assessee company filed its return of income declaring 'nil' income vide letter dt. 14th Sept., 2001. After processing of return under s. 143(1) of the Act, the notice under s. 143(2) of the Act was issued on 26th Sept., 2002 to complete the assessment. The original assessment was completed under s. 143(3) of the Act vide order dt. 2nd Sept., 2003. Subsequently, the assessee received a notice under s. 148 of the Act dt. 3rd March, 2006, vide which the AO reopened the assessment and wanted to tax the income escaped assessment after recording reasons. For reopening of assessment under s. 147 of the Act, the AO recorded the following reasons for issuance of notice under s. 148 of the Act, which read as under: "1. The assessee is a private limited compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 40(A)(2), which is evident from the addresses of the depositors admitted with the audit report. 4. In view of the above, I have reasons to believe that income chargeable to tax amounting to Rs. 2,06,604 has escaped assessment for asst. yr. 2001-02 and necessary approval may kindly be accorded to issue notice under s. 148 of the IT Act. if deemed fit." The above notice issued under s. 148 of the Act was within the four years from the end of the relevant assessment year. The assessee, before us has raised this legal issue that during the course of original assessment, the assessee has provided all the information as the same has been made basis for reopening the assessment while issuance of notice under s. 148 of the Act. 4. The learned counsel for the assessee has taken us to the assessee's paper book where at p. 1 the original assessment order is placed. He referred to paras 2, 3 and 4 of the original assessment order, which read as under: "2. In response to the said notice, Miss Aarti M. Shah, chartered accountant, duly authorized representative attended from time-to-time and filed the details and the case was discussed with her, books of account are produced. which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no reopening is possible on the basis of change of opinion. The learned counsel for the assessee also relied on the case law of Jindal Photo Films Ltd. vs. Dy. CIT (1999) 154 CTR (Del) 355 : (1998) 234 ITR 170 (Del). 5. On the other hand, learned Departmental Representative argued that the original order of the AO is very brief and the details filed before the AO have never been considered and nothing speaking has been decided on the same. The learned Departmental Representative also argued that once an assessment was reopened the previous assessment is set aside and stated that since in this case, this issue with regard to applicability of s. 40 (A)(2) for the proposed addition of Rs. 2,06,604 as narrated in the reasons recorded, has not reached finality earlier during the original assessment, therefore, the contention of the assessee is not as per the provision of law. Accordingly, the learned Departmental Representative argued that the reopening is valid and within the framework of law. 6. Having heard the rival contentions and going through the case records, including the assessment order as well as reassessment order and order of CIT(A) and assessee's paper books I an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are placed in assessee's paper book; we feel that the reopening is just merely a change of opinion and nothing else. The change of opinion is not permissible in law as held by the Hon'ble apex Court in the case of Foramer France while confirming the decision of Hon'ble Allahabad High Court, wherein the Hon'ble High Court has held as under: "In our opinion, we have to see the law prevailing on the date of issue of the notice under s. 148, i.e. 20th Nov., 1998. Admittedly, by that date, the new s. 147 has come into force and, hence, in our opinion, it is the new s. 147 which will apply to the facts of the present case. In the present case, there was admittedly no failure on the part of assessee to make a return or to disclose fully and truly all material facts necessary for the assessment. Hence, the proviso to the new s. 147 squarely applies, and the impugned notices were barred by limitation mentioned in the proviso." And finally the Hon'ble Allahabad High Court has held as under: "Although we are of the opinion that the law existing on the date of the impugned notice under s. 147/148 has to be seen, yet even in the alternative even if we assume that the law prior to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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