TMI Blog2021 (4) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/-, sufficient explanation was made by the assessee and accordingly, for the A.Y. 2011-12, the assessing officer did not add this amount for the purpose of tax. Therefore, it is presumed to have accepted the contention of the assessee even there was no express reference in the assessment order. Considering the facts of the present case, no any tangible material came in the hands of the assessing officer after concluded assessment and therefore, in absence of any tangible materials, the reassessment on the basis of change of opinion cannot be permissible. We have examined the materials on record, which show that, at the time of filing the return of income as well as during the course of original assessment proceedings, the assessee had disclosed all the material facts fully and truly and there was no false and untrue declaration on the part of the assessee with regard to approval of the project by the concerned authorities to avail the benefit of claim of deduction under Section 80IB (10) of the Act. We have no hesitation to hold that, there was no basis or jurisdiction for the assessing officer to form a belief that, any income of the assessee for the respective assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground of incorrect claim of the deductions and unexplained cash deposit. It is not in dispute that, for the A.Y 2011-12, 2012-13, 2013-14 and 2014-15, the scrutiny assessment was framed under Section 143(3) of the Act. In this background facts, the impugned notices as referred above came to be issued under Section 148 of the Act. 4. We may summarize the facts in brief of the respective years as under:- 4.1 SCA No.15209 of 2018 (A.Y. 2011-12) The assessee filed its original return of income on 28.09.2011 declaring total income at ₹ 6,87,68,958/-. The return was processed under Section 143(1) of the Act. The assessment under Section 143 of the Act was completed on 31.03.2014. The assessing officer reopened the assessment by issuing notice under Section 147 of the Act. At the request of the assessee, the reasons recorded have been furnished, which reads as under : from the records, it is noticed that the assessee has claimed deduction under explanation 7 of section 801B(10)(a) (iii) of the act for an amount of ₹ 21,55,66,760/-. The assessee has claimed expense of ₹ 6,00,000/towards commission paid to Baldevbhai M Patel HUF. Further, a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F is a non-functional entity in terms of commission income. Further, cash deposit of ₹ 6,80,000/has been found in the bank accounts of the assessee firtn between 07/06/2010-24/06/2010. The assessee has claimed deduction under explanation 1 of section 80IB(10)(a) (iii) of the act for an amount of ₹ 21,55,66,760/-, whereas the assessee firm was not entitled to claim any such deduction. T. he assesse has claimed expense of ₹ 6,00,000/towards commission paid to Baldevbhai M Patel HUF and had deducted TDS @10 % amounting to ₹ 60,000/- knowing the fact that HUF Is a non-functional entity in terms of commission income. Further, cash deposit of ₹ 6,80,000/has been found in the bank accounts of the assessee firm between 07/06/2010- 24/06/2010. Therefore, the income of ₹ 21,68,46,760/- has escaped assessment. Considering the above facts, I have reason to believe that b ry omission on the part of the assessee to disclose fully and truly all material facts necessary for the assessment, the income chargeable to tax for AY 2011-12 has escaped assessment within the meaning of Section 147 of the IT Act. 2. Further, this office is intimating you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y. 201 2 -1 3 ) The assessee filed its original return of income on 28.09.2012 declaring total income at Rs.NIL. The return was processed under Section 143(1) of the Act. The case was selected for scrutiny and the assessment under Section 143(3) of the Act was completed on 31.03.2014 determining the total income at Rs.NIL. Thereafter, notice under Section 148 of the Act was issued on 31.03.2019 and at the request of the assessee, the reasons recorded have been furnished on 13.06.2019, which reads as under : From the records, it is seen that, the assessee did not get approval of the local authority i.e. Bopal Gram Panchayat. The assessee has claimed deduction Explanation 1 of Section 80IB (a)(iii) of the Act for the amount of ₹ 14,49,73,764/- has escaped assessment. The assessee had raised the objections vide its communication dated 15.07.2019, which came to be rejected by the respondents vide order dated 23.09.2019. 4.3 SCA No . 1749 7 of 2019 (A.Y. 201 3 -1 4 ) The assessee filed its original return of income on 28.09.2013 declaring total income at ₹ 5,01,81,040/- after claiming deduction under Section 80IB (10) of the Act of ₹ 2,94,04, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned notices liable to be quashed and set aside on the ground that, it has issued merely on the basis of change of opinion. In this regard, he would submit that, the assessing officer is not authorized to reopen the assessment merely on the basis of change of opinion and reconsideration of the same without any tangible material available on record. He further submits that, in the present case, during the course original assessment proceedings, the issue of claim of deduction under Section 80IB(10) of the Act was discussed at length and the assessee had explained in detail regarding each condition being fulfilled for claiming deduction and also submitted necessary approval of the concerned authorities and the assessing officer was satisfied with the details furnished and finally assessment under Section 143 (3) of the Act was framed without any further addition or disallowance of the claim. In this circumstances, the learned counsel has urged that, in the original proceedings, the assessing officer had formed an opinion and therefore, issuance of notices on the same materials in the absence of any tangible material is, mere a change of opinion, which cannot permissible in law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issues were called for and it was duly complied by the assessee and the assessing officer thought fit not to make any additions, nor raise any adverse view. 12. It is a settled principle of law that, a mere fresh application of mind to the same set of facts or mere a change of opinion does not confer jurisdiction upon the assessing officer to issue notice under Section 148 of the Act. 13. In the case of Binani Industries Ltd. Vs. CCT, [(2007) 15 SCC 435] , the Apex Court observed that, a mere change of opinion while pursuing the same materials cannot be a reason to believe that the case of escaped assessment exists requiring assessment proceedings to be reopened. On the same issue, the Apex Court in the case of A.L.A Firm Vs. CIT [1991 (2) SCC 558] , observed that, if the conscious application of mind is made to the relevant facts and materials available or existing at the relevant point of time while making the assessment and again different or divergent view is reached, it would tantamount to change of opinion. 14. In the background of the aforesaid facts, we have examined all the material facts as well as the reasons recorded for reopening of the assessment for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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