TMI Blog2018 (6) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the same. Therefore, the reasons in support of the notice, prima-facie indicates a change of opinion. We are prima-facie of the view, that the impugned notices are without jurisdiction. Therefore, there shall be interim stay in terms of prayer clause (d) in both the petitions. - Writ Petition No. 271, 278 of 2018 - - - Dated:- 15-6-2018 - M. S. Sanklecha And Sandeep K. Shinde, JJ. Mr. Percy Pardiwala, Senior Counsel a/w. Mr. Nitesh Joshi i/by. Mr. Atul Jasani, Advocate for the petitioner Mr. P.C. Chottaray, Advocate Ms. D.N. Mishra, Advocate for respondent ORDER P. C. 1. Heard. 2. Rule. 3. These two petitions challenge the notices for reopening of assessment issued Section 148 of the Income Tax Act (th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange of opinion. Thus, it is submitted that the Assessing Officer had no reason to believe that the income chargeable to tax has escaped assessment. Our attention is drawn to the fact that the claim for deduction on the above account viz. restructuring of its loans/advances was made in its computation of income and the notes annexed thereto specifically note 21 (Assessment Year 2013-14) and note 22 (Assessment Year 2014-15) thereof had made reference to the fact that the provision for diminution on account of restructured Advances of ₹ 710.81 crores (Assessment Year 2013-14) and ₹ 495.11 crores (Assessment Year 2014-15) was claimed in accordance with RBI guidelines. It is the petitioner's case that this claim for above provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im of the petitioners. Thus, there was no formation of opinion on the issue in the regular assessment proceedings. Consequently, there can be no change of opinion of the issue which forms the basis of the reasons recorded for issuing the impugned notices. 6. We note that the Apex Court in Income-Tax Officer V/s. Techspan India Private Limited and Another, reported in [2018] 404 ITR 10(SC) reiterated the settled principle of law laid down by the Supreme Court in CIT V/s. Kelvinator of India Ltd. [2010] 320 ITR 561(SC) that the Assessing Officer has a power only to reassess and has no power to review the assessment order. Thus, it held that no re-opening notice can be issued which is premised on a change of opinion. It further goes on to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an impossible burden upon the Assessing Officer considering his workload and the period of limitation. There was also no reason in the present facts for the Assessing Officer to ask any queries in respect of this claim of the petitioner, as the basic document viz. computation of income at note 21 (Assessment Year 2013-14) and note 22 (Assessment Year 2014-15) thereof explained the basis of the claim being made to the satisfaction of the Assessing Officer. Thus, it must necessarily be inferred that the Assessing Officer has applied his mind at the time of passing an assessment order to this particular claim made in the basic document viz. computation of the income by not disallowing it in proceedings under Section 143(3) of the Act as he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er at the time of passing an assessment order. 8. The decision in the case of A.L.A. Firm v. Commissioner of Income-Tax [1991] 189 ITR 285 of the Apex Court, wherein the Proposition (4) as enunciated in Kalyanji Mavji and Co., V. CIT, reported in [1976] 102 ITR 287 (SC) was held to be applicable which reads as under :- where the information may be obtained even from the record of the original assessment from the investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law . The Court observed, the aforesaid proposition would entitle the Revenue to re-open an assessment on the basis of material already on record provided some information in the form of facts or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moreover, the above decision of the Apex Court in Southern Technologies (supra) was available when the orders in regular assessment was passed and admittedly the Assessing Officer did not disallow the claim on satisfaction as pointed out above. So far as the decision of this Court in Rabo India Finance Ltd. vs. Deputy Commissioner of Income-Tax 356 ITR 200 is concerned, prima-facie the same cannot have any application to the present facts as it proceeded on the basis that the reopening notice was issued on the basis of information coming to the knowledge of the Assessing Officer after the original assessment order was passed. i.e. during the course of assessment proceedings of the subsequent year. In this case, nothing has been shown to us ..... X X X X Extracts X X X X X X X X Extracts X X X X
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