TMI Blog2019 (8) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... inal assessment. Now, the respondent is looking forward to touch the very same issue by re-opening the writ applicant s case which is nothing but change of opinion. The action of re-opening the writ applicant s case under Section 147 merely based on change of opinion is not tenable in the eye of law. - Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 16999 of 2018 - - - Dated:- 19-8-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Petitioner (s) : MS VAIBHAVI K PARIKH (3238) For The Respondent (s) : NOTICE SERVED (4) ORAL ORDER ( PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. The respondent although served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re on 04.04.2006 i.e. Financial Year 2006-07 relevant to the Assessment Year 2007-08 by an account payee cheque from M/s. Pushti Enterprise Pvt. Ltd. (now known as M/s. Reliance Progressive Traders Pvt. Ltd.) towards the advance for the sale of a property. It is the case of the writ applicant that the said deal however, came to be cancelled and the amount referred to above was repaid by the writ applicant during the Financial Year 2010-11 vide cheque drawn from the ICICI Bank Account No.005205002647 held by the writ applicant in the name of his proprietary concern by borrowing an equivalent sum from one Shri Mitul J. Shah from the Financial Year 2010-11. Thus, prima facie it appears that for the purpose of purchasing the property the writ a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open the case of the writ applicant for the year under consideration. The reasons assigned for the re-opening under Section 147 of the Act, 1961 are as under : 3. During investigation it was ascertained that te amount credited in the account of M/s Shashan Corporation was received from the account of Shri Mitul J. Shah on 27.01.2011 and on the very same day the amount of ₹ 6 Crores was transferred to M/s Reliance Progressive Traders Pvt. Ltd. On perusal of the books of accounts of Shri Rajendra Shah there was no mention of any advance of ₹ 6,00,00,000/- nor there was any mention in the audit report in this aspect. Thus the said amount of ₹ 6,00,00,000/- remained unsubstantiated. The assessee was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Year 2011-12 for taxing such amount; ( 2) The re-opening is beyond the period of four years and there is no failure on the part of the writ applicant as to full and true disclosure; ( 3) It is submitted that the re-opening is based on mere change of opinion; ( 4) It is also submitted that the reasons for re-opening lack validity as there is no reason to believe that the income chargeable to tax has escaped assessment; ( 5) It is also submitted that re-opening is not permissible for undertaking a roving or a fishing inquiry or investigation without there being a specific finding as to the escape of income; ( 6) It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pril, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words reason to believe failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of mere change of opinion , which cannot be per se reason to reopen. 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 re- assessment has to be based on fulfillment of certain pre-condition 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll settled and its omission from section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended section 147 to reintroduce the expression has reason to believe in 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. 7.2 The then Assessing Officer, vide notice dated 07.10.2013 issued under Section 142(1) of the Act, called upon the writ applicant to furnish various details including the followings : Confirmations for unsecured loans / advances alongwith name, PAN, address, assessment detail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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