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TMI Blog2019 (11) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee filed his return of income for A.Y. 2006-07 on 31.03.2007 declaring total income of Rs. 54,18,350/-. The case was initially taken up for scrutiny and thereafter assessment was framed vide order dated 24.12.2008 u/s 143(3) of the Act. Thereafter, notice u/s 148 of the Act dt.30.03.2011 was issued and served on the assessee. In response to notice u/s 148 of the Act, assessee vide reply dated 12.04.2011 submitted that the return of income filed by him on 31.03.2007 for A.Y. 2006-07 be considered as return of income in response to notice u/s 148 of the Act. Thereafter, the case was taken up for scrutiny and assessment was framed u/s 143(3) r.w.s. 147 of the Act vide order dt.30.12.2011 and the total income was determined at Rs. 1,05,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining to the assessee were found in a Diary in which certain entries relatable to share purchase and share sale transaction of the assessee were recorded. On the basis of the aforesaid documents, the reasons were recorded for re-opening and it was concluded that there was an escapement of income in the case of assessee. He submitted that during the course of original assessment proceedings for A.Y. 2006-07 the AO had made a detailed enquiry relating to various transactions of the assessee including share purchase and sale transactions to which the assessee also made detailed submissions from time to time and after taking into consideration of all the submissions, assessment order was passed u/s 143(3) of the Act on 24.12.2008. In support o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as void and ab initio and for which he placed reliance on the decision of Hon'ble Supreme Court in the case of M/s. CIT Vs. Kelvinator of India Limited reported in (2010) 320 ITR 561 SC. Ld. D.R. on the other hand, supported the order of AO and Ld.CIT(A). 4. We have heard the rival submissions and perused the material on record. Assessee in the present appeal is challenging the re-opening of the assessment u/s 147 / 148 of the Act. It is an undisputed fact that assessee had filed original return of income for A.Y. 2006-07 on 31.03.2007 and the original assessment was framed u/s 143(3) of the Act vide order dt.24.12.2008. Thereafter, notice u/s 148 of the Act was issued on 30.03.2011 i.e., within four years from the end of the assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act is not to be satisfied for issuing of re-opening notice within the period of four years from the end of the relevant assessment year. Thus, in the absence of cumulative satisfaction of reason to believe and in the absence of any income chargeable to tax escaping assessment, the Assessing Officer is not empowered with jurisdiction to reopen an assessment. 6. In the present case it is also a fact that original assessment for the year under consideration was framed under section 143(3) of the Act. In such a situation, another aspect that has to be kept in mind is as to whether the reopening is based upon any tangible material which has come to the knowledge of the Assessing Officer subsequent to the framing of the earlier assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment. On the issue that change of opinion cannot constitute a reason for reopening we find that Hon'ble Apex Court in the case of CIT Vs. Kelvinator India (2010) 320 ITR 561 (SC) has held so. The relevant observation of the Hon'ble Apex Court is as under: "6. On going through the changes, quoted above, made to section 147 of the Act, we find that, prior to the Direct Tax Laws (Amendment) Act, 1987, reopening could be done under the above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act (with effect from 1st April, 1989), they are given a go-by and only one condition has remained, viz., that where the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the Act. However, on receipt of representations from the companies against omission of the words "reason to believe", Parliament reintroduced the said expression and deleted the word "opinion" on the ground that it would vest arbitrary powers in the Assessing Officer." 8. The aforesaid view has been reiterated in several decisions thereafter. Considering the totality of the aforesaid facts and in view of the decisions cited hereinabove, we are of the view that in the present case, the notice of reopening the assessment u/s 148 of the Act is on account of change of opinion by the AO, which is not permissible as per law. We are therefore of the view that the impugned notices cannot be sustained and the same deserves to be quashed and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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