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TMI Blog2020 (5) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... Year 2003-04. 2. The said Notice has been issued on the last date of expiry of limitation (six years), under proviso to Section 147 of the Income Tax Act, 1961 seeking to re-open the assessment. 3. The brief facts of the present case are that the petitioner is engaged in manufacture and sale of paper and paper products. The petitioner had filed the return for the Assessment Year 2003-04 on 03.11.2003. Thereafter, a scrutiny assessment was completed and an assessment order was passed on 29.03.2006 under Section 143(3) of the Income Tax Act, 1961. Just before a lapse of six years limitation, the respondent issued a notice dated 30.03.2010 under Section 148 of the Income Tax Act, 1961 to re-open the aforesaid assessment. 4. Under these circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its 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 appearing for the petitioner relied on the following decisions:- i. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case, as has been contended by the petitioner that if there was a change of opinion and if the petitioner establishes that there was no failure on the part of the petitioner to fully and truly disclose all materials required for assessment, the officer would be obliged to drop the proceedings. 12. On the one hand, it is the contention of the learned counsel for the petitioner that the impugned proceedings are without jurisdiction and therefore the petitioner was entitled for the relief. On the other hand, it is the contention of the respondent that the present Writ Petition is liable to be dismissed. 13. I have considered the arguments advanced by the learned counsel for the petitioner and the learned standing counsel for the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind the express language of the 1st proviso to Section 147 of the Act. As per the 1st proviso to Section 147 of the Income Tax Act, 1961, no action shall be taken under the said Section after expiry of four years from the end of the relevant assessment year, unless income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under Section 139 or in response to a notice issued under sub-Section (1) of Section 142 or 148 or to disclose fully and truly all material facts necessary for that assessment year. 19. Whether the notice that has been issued to the petitioner was on account of change of opinion or on account of failure on the part of the petitioner to fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review, he has the power to re-assess. But re-assessment has to be based on fulfilment 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 re-opening the assessment, review would take place. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer." 26. In case indeed there is a mere change in opinion, the respondent will be obliged to drop the proceeding. However, to ascertain whether is a mere change of opinion or not first it has to be established that there was true and full disc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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