TMI Blog2020 (5) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer to drop the proceedings in terms of 1st proviso to Section 147 of the Income Tax Act, 1961. In case there is a change of opinion, the respondent cannot proceed in the light of the decision of the Hon ble Supreme Court in CIT Vs. Kelvinator of India Ltd. [ 2010 (1) TMI 11 - SUPREME COURT] In case indeed there is a mere change in opinion, the respondent will be obliged to drop the proceeding. To ascertain whether is a mere change of opinion or not first it has to be established that there was true and full disclosure by the petitioner. As mentioned above, this can be demonstrated by the petitioner only before the respondent and not in a proceeding under Art.226 of the Constitution of India as scope of judicial review is very limited and it is not possible to conduct a roving enquiry on facts and accounts. Under these circumstances, find no merits in quashing the impugned notice and the communication overruling the objection of the petitioner. Relegate the petitioner to participate in the proceedings before the respondent by filing appropriate representations/objections within a period of thirty days from the date of receipt of a copy of this order. If the circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxmann.com 128 (Bombay). 6. It is further contended that no fresh material has brought to invoke Section 148 of the Income Tax Act, 1961 and that the failure in diminution value for computation under Section 115JB was merely based on the change of opinion and therefore, it was contrary to the decisions of the Hon ble Supreme Court in CIT Vs. Kelvinator of India Ltd., (2010) 320 ITR 561 (SC) and in ITO Vs. Techspan India P. Ltd., (2018) 404 ITR 10 (SC). 7. It is further submitted that on merits the provision of bad and doubtful debts was disallowed as item not allowable by the petitioner itself and that the petitioner had not claimed any deduction in respect of provision for bad and doubtful debts and hence there is no escapement of income. 8. It is further submitted that the diminution in value would not enhancing the liability and hence, need not to be added back under the computation under Section 115JB of the Income Tax Act, 1961 for the purpose of memo altering the tax under reference was made to the decision of the Hon ble Supreme Court in Commissioner of Income Tax Vs. HCL Comnet Systems Services Ltd., (2008) 305 ITR 0409. 9. The learned counsel appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under Section 148 of the Income Tax Act, 1961 is for passing an order of re-assessment under Section 147 of the Income Tax Act, 1961. However, Section 148 of the Income Tax Act, 1961 is not governed by the restrictions contained in Section 147 of the Income Tax Act, 1961. 15. For the aforesaid purpose, the Assessing Officer has to merely issue a notice within the time limit prescribed under Section 149 of the Income Tax Act, 1961. Before issuing notice, he has to record reason. In view of the decision of the Honourable Supreme Court in GKN Drive Shafts referred to supra, an assessee is now entitled to ask for the reasons for reopening of the assessment after filing the returns. The Assessing Officer has to merely communicate the reasons for reopening the assessment if desired by the assessee. 16. The communication of reasons for reopening of the assessment is merely to allow an assessee to participate in the re-assessment proceedings by giving effective reply. The overruling of the objection by the respondents through a speaking order is however not an order under Section 147 of the Income Tax Act, 1961. 17. Thus, for issuing a notice under Section 148 of the Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is expected to complete the assessment. The Court there quashed the notice as all material was available to open sight. 22. In the facts of the case, though the petitioner had furnished certain details at the time of re-assessment, the question still remains to be answered is whether there was full and true disclosure by the petitioner as is contemplated under proviso to Section 147 of the Income Tax Act, 1961. 23. In this case, mere filing to the annexure by the petitioner in response to notice during scrutiny assessment by itself may or may not have been sufficient to come to the conclusion that there was full and true disclosure by the petitioner if the information furnished was neither complete nor true. Question is whether the information furnished were complete in all respect is to be decided only in a adjudicator mechanism. 24. It is therefore best left open for the petitioner to demonstrate before the respondent that the details furnished by the petitioner meets the requirements of full and true disclosure for the Assessing Officer to drop the proceedings in terms of 1st proviso to Section 147 of the Income Tax Act, 1961. 25. In case there is a change of opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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