TMI Blog2017 (12) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... of the tangible material placed on record necessitating the reassessment. Sufficient reasons have been assigned for reopening of the assessment. The objections raised by the petitioner company have been specifically dealt with by the respondent no.1. Impugned order dated 12.12.2011 passed by the respondent no.1 is detailed and reasoned. - Decided in favour of assessee. - Writ Petition (M/S) No. 2655 of 2011 - - - Dated:- 3-11-2017 - Hon ble Rajiv Sharma , J. Mr. P.R. Mullick, Adv. for the petitioner Mr. H.M. Bhatia, Standing Counsel, for the Income Tax ORDER This petition has been filed challenging the notice dated 28.3.2011 (Annexure No.6) and order dated 12.12.2011 (Annexure No.10). 2. Key facts necessary for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord that the petitioner company had transactions with M/s Alfa Crew AS, Fred Olsen Brokers AS, Dolphin AS M/s Dolphin Drilling Pte. Ltd. These are the Associate Enterprises of the assessee. The case of the Revenue is that the transactions with the assessee were never referred to the TPO for computation of the income at arms length. It has come specifically in the reasons assigned for reopening of the case that the proceedings for the relevant assessment year show that the issue, whether the 3CEB was to be referred to the TPO, was never even taken up by the Assessing Officer. Rather, the Assessing Officer did not consider it proper referring to 3CEB report for arm s length computation. It is in these circumstances, the notice u/s 148 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer to reopen assessments on the basis of mere change of opinion , which cannot be per se reason to reopen. 6. We must also keep in mind the conceptual difference between power to review and power to reassess. The assessing officer has no power to review; he has the power to reassess. But reassessment has to be based on fulfilment of certain precondition and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place. 7. One must treat the concept of change of opinion as an in-built test to check abuse of power by the assessing officer. Hence, after 1-4-1989, the assessing officer has power to reopen, provided there is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as reason to believe in the place of the words for reasons to be recorded by him in writing, is of the opinion . Other provisions of the new Section 147, however, remain the same. 5. Similarly, the Division Bench of Delhi High Court in (2006) 281 ITR 394 (Delhi) in the matter of Consolidated Photo Finvest Ltd. V. Asst. CIT (Delhi) has held that the Proviso to Section 147 envisages action in the ordinary course within a period of four years from the end of the relevant assessment year. That limitation does not, however, apply to cases where income chargeable to tax has escaped assessment on account, inter alia, of the failure of the assessed to disclose fully and truly all material facts. The argument that production of the accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o tax had in his opinion escaped assessment. The argument that the proposed reopening of assessment was based only upon a change of opinion has not impressed us. The assessment order did not admittedly address itself to the question which the assessing officer proposes to examine in the course of re-assessment proceedings. The submission of Mr. Vohra that even when the order of assessment did not record any explicit opinion on the aspects now sought to be examined, it must be presumed that those aspects were present to the mind of the assessing officer and had been held in favor of the assessed is too far fetched a proposition to merit acceptance. There may indeed be a presumption that the assessment proceedings have been regularly conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one so, the proposed reopening cannot be assailed on the ground that the same is based only on a change of opinion. 6. In the present case, the Assessment Officer while assessing the income of petitioner company, has ignored the transactions made by it with its Associate Enterprises. He has also overlooked whether Section 3CEB was to be referred to the TPO. It is thus, not the change of opinion but the reassessment has been ordered on the basis of the tangible material placed on record necessitating the reassessment. Sufficient reasons have been assigned for reopening of the assessment. The objections raised by the petitioner company have been specifically dealt with by the respondent no.1. Impugned order dated 12.12.2011 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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