TMI Blog2016 (3) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue from proceeding further with the reassessment proceedings. Needless to state that during the reassessment proceedings, the petitioner would have occasion to establish that the loans taken from the eight entities referred to in the reasons were genuine loans before the Assessing Officer and also before the appellate authorities under the Act. - Decided against assessee - Writ Petition (L) No. 430 of 2016 - - - Dated:- 14-3-2016 - M. S. Sanklecha And A. K. Menon, JJ. For the Appellant : Mr. Mihir Naniwadekar i/b. Ajay Kumar For the Respondent : Mr. Arvind Pinto ORDER P. C. 1. This Petition under Article 226 of the Constitution of India challenges the notice dated 3rd February, 2015 issued under Section 148 of the Income Tax Act, 1961 (Act). By the impugned notice, the Assessing Officer is seeking to reopen the assessment for Assessment Year 2012-13. 2. The reasons in support of the impugned notice as communicated to the Petitioner read as under:- Reasons for Reopening Name of the assessee BRIGHTSTAR SYNTEX PRIVATE LIMITED PAN AABCB94971 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its objections to the reasons recorded in support of the impugned notice and pointed out that the assessment for the subject assessment year was done by an order dated 19th December, 2014 under Section 143(3) of the Act. It was also submitted that during the proceedings, the very parties which have been adverted to in the reasons in support of the impugned notice as being entities operated by one Mr. Praveen Kumar Jain Group from whom the Petitioner had received loans and advances was a subject matter of inquiry during scrutiny assessment proceedings. The assessment order was passed only on the Assessing Officer on being satisfied with the evidence produced by the petitioner in respect of the loans taken from the eight entities referred to in the reasons recorded in support of the impugned notice. Further reliance was placed upon various decisions to contend that mere statement/confession by the person that he was involved in providing accommodation entries would not by itself establish that the loans taken by the petitioners from the 8 companies referred to in the reasons recorded in support of the impugned notice were not genuine being mere accommodation entries. 4. By an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember, 2013. This formed the basis for scrutiny assessment of the Returns of Income It is therefore submitted that all these facts were within the knowledge of the Assessing Officer while passing the Assessment order dated 19th December, 2014 for the Assessment Year 2012-13. Consequently, this is another indication of a clear case of change of opinion. 6. It is settled position in law that while considering a challenge to a reopening notice on the ground that it is without jurisdiction, the Court has to keep in mind that a settled position in law is not being disturbed as evident from the orders passed earlier, without any justification. However, the Court will certainly interfere where the reason to believe that income has escaped assessment, is a clear case of change of opinion i.e. the same material was subject to consideration in regular assessment proceedings or where the reopening is being done only on suspicion and/or to carry out investigation or where the assessment is sought to be reopened after a period of more than four years from the end of the relevant assessment year and there has been no failure on the part of the assessee to truly and fully disclose all materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that there was no prima facie view reflected in the reasons as the same was subject to investigation of the transaction to find its genuineness. Similarly the decision in Lakhmani Mewal Das (supra) was a case of a notice beyond four years from the end of the relevant assessment year. In that case one of the persons had confessed to the Revenue that he was dealing in providing accommodation entries i.e. name-lending. Amongst the various reasons the Supreme Court pointed out that there was no indication in the reasons as to when the confession was made by the namelender and also to which assessment year the confession relates. Therefore, the material before the Assessing Officer was vague or indefinite and it could not be the basis for having the reason to believe that income chargeable to tax had escaped assessment for that year. Reliance was also placed upon the decision of this Court in M/s. Rushab Enterprises (supra). We find the decision of this Court was rendered in the context of the assessment being reopened beyond a period of 4 years from the end of the relevant assessment year. In the facts of that case and on the basis of reasons recorded therein, the Court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tober, 2013. According to the petitioner, this material was available with the Assessing Officer when the order dated 19th December, 2014 was passed. On being questioned, Mr. Murlidharan learned counsel for the petitioner states that this issue was not taken in its objections to the reasons in support of the impugned notice as the aforesaid communication was only received after the objection had been disposed of. However, we find that the Petition itself does not specifically mention the date when this document was received by the petitioners and therefore could not be the basis of the objections. It needs no mention that a party invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution must show utmost good faith. This itself would disentitle the petitioner to rely upon Exhibit 'O' to the Petition. Moreover, this Court in Crown Consultants (P) Ltd. Vs. Commissioner of Income Tax, 362 ITR 368 has taken a view that where an objection is not taken before the Assessing officer while responding to the reasons in support of a notice seeking reopen an assessment, then it is not open to assessee to raise such objection for the first time before th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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