TMI Blog2021 (12) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The co-ordinate Bench of this Court has succinctly laid down the criteria for reopening of assessment within a period of 4 years in Jainam Investments [ 2021 (9) TMI 517 - BOMBAY HIGH COURT] by holding that the Assessing Officer cannot reopen the assessment even within four years merely on the basis of change of opinion. The Assessing Officer had no power to review the assessment, which has been concluded unless he has tangible material to come to the conclusion that there is escapement of income from assessment. For all these reasons, we are of the view that the exercise of jurisdiction under Section 148 of the Act in the present case is without any tangible material. - Decided in favour of assessee. - WRIT PETITION NO.33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, which disclosed the amount of ₹ 8,13,77,452/- being eligible and admissible for deduction under Section 80P of the Act. 4. Petitioner's return was picked up for scrutiny by issuing notice dated 9/5/2016 under Section 142 of the Act. Petitioner was called upon to explain and justify the deductions claimed under Chapter VIA of the Act in which Section 80P falls. In response to the said notice, Petitioner filed a reply dated 23/5/2016 explaining eligibility for deduction under Section 80P of the Act. 5. Respondent No.1 on 25/11/2016 issued further notice under Section 142 of the Act requiring Petitioner to justify the claim of deduction of ₹ 3,40,12,534/- claimed under Section 80P of the Act. In response to the said n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted to a change of opinion. It was further stated that reopening of assessment was without any new material brought on record. Petitioner also stated, on merits, that the issue of deduction under Section 80P of the Act on income received from co-operative Bank was covered in favour of Petitioner by the decisions of various High Courts and Income Tax Appellate Tribunal. 7. Respondent No.1, vide order dated 31/10/2019 and served upon Petitioner on 4/11/2019, dismissed the objections. Therefore, Petitioner has filed the present petition challenging the notice of reopening of assessment and order of rejection of objections. 8. Mr. Vaidya, learned Advocate for Petitioner, submitted that (i) There was no tangible material based on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction for interest received from the investment made with co-operative Banks as co-operative Banks are not co-operative Society as defined under Section 2(19) of the Co-operative Societies Act. (ii) From the tenor of the original assessment order, it is clear that the Assessing Officer had not applied his mind to the issue of eligibility of Petitioner to the deduction for interest received from the investment made with co-operative Banks. (iii) The Assessing Officer was within his jurisdiction in reopening the assessment under Section 148 of the Act and had correctly rejected the objections preferred by Petitioner. 10. The rival submission now fall for determination. From the reasons supplied to Petitioner, it appears tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 12. Section 147 enables the Assessing Officer to assess or reassess any income chargeable to tax which he has reason to believe has escaped assessment for an assessment year. The proviso to section 147 imposes additional requirements where an assessment is sought to be reopened beyond a period of four years from the end of the relevant assessment year. In the present case, the exercise of power is within a period of four years and, therefore, the requirements of the proviso are not attracted. Where the Assessing Officer purports to exercise power under section 147 within a period of four years of the end of the relevant assessment year, the condition precedent to the exercise of the power, is the existence of a reason to believe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is removed, as contended on behalf of the Department, then the review would take place in the garb of reopening the assessment. One must treat the concept of 'change of opinion' as an in-built test to check abuse of power by the Assessing Officer. Hence, after April 1, 1989, the Assessing Officer has the power to reopen, provided there is 'tangible material' to come to the conclusion that there is escapement of income from assessment. Reasons must have a link with the formation of the belief 13. Mr. Chhotaray, learned Counsel appearing for Revenue placed reliance on the proposition of law laid down by the Supreme Court in the three judgments viz., A. L. A. Firm vs. Commissioner of Income-Tax (1991) 189 ITR 285 (SC), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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