TMI Blog2022 (7) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer reopening the relevant assessment on the very self-same material without making out any case against the assessee/petitioner that some new material has come to his knowledge or possession which were suppressed or not disclosed by the assessee/petitioner at the time of scrutiny assessment, is nothing but a mere change of opinion and in facts and circumstances of this case initiation of the impugned proceeding for reopening of assessment under Section 147 of Income Tax Act, 1961 is not sustainable in law and the impugned assessment proceeding is liable to be quashed. - Decided in favour of assessee. - WPO/367/2015 - - - Dated:- 5-7-2022 - THE HON'BLE JUSTICE MD. NIZAMUDDIN Mr. J.P. Khaitan, Sr. Adv. Mr. Pranit Bag, Adv. Mr. Anirudha Agarwalla, Adv. Ms. Debashri Mukherji, Adv. For the Petitioner Mr. Prithu Dudhoria, Adv. .for the Respondents ORDER The Court : Heard learned advocates appearing for the parties. By this writ petition, petitioner has challenged the impugned notice under Section 148 and initiation of proceedings under Section 147 of the Income Tax Act, 1961. Short question of law involved in this writ petition is as to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant assessment are the same two issues/claims referred hereinabove involved during the course of the scrutiny assessment on which queries were raised by the Assessing Officer and the same were replied by the assessee petitioner with all sufficient material documents which are part of this writ petition also and after considering the same, were accepted by the assessing officer during the course of scrutiny assessment. It appears from record that challenging the initiation of the impugned re-assessment proceeding under Section 147 and notice under Section 148 of the Act, petitioner had filed detailed objection on 22nd May, 2014 and 21st January, 2015 as appears at pages 282 and 288 of the writ petition and which were rejected by the Assessing Officer by his order dated 19th March, 2015 as appears at page 295 of the writ petition. Petitioner filed this writ petition on receiving the aforesaid impugned order of rejection of petitioner s objection against the issuance of impugned notice under Section 148 and initiation of re-opening of assessment under Section 147 of the Act. By this Writ Petition, Petitioner has challenged the impugned notice under Section 148 and ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings and the assessee has responded to that query, it would necessarily follow, as held by our Court that the Assessing Officer has accepted the Petitioner's/Assessee's submissions, so as to not deal with that issue in the assessment order. In fact, our Court in GKN Sinter Metals Ltd. v. Ms. Ramapriya Raghavan, Assistant Commissioner of Income Tax, Circle 2(1) (371) ITR 225 had occasion to dealt with the similar/identical submissions on behalf of the Revenue viz. that an assessment order passed under Section 143(3) of the Act does not reflect any consideration of the issue, it must follow that no opinion was formed by the Assessing Officer in the regular assessment proceedings. This submission was negatived by this Court by observing as follows (para 237 of 371 ITR): According to the Revenue, it could only be when the assessment order contains discussion with regard to particular claim can it be said that the Assessing Officer had formed an opinion with regard to the claim made by the assessee. This Court in Idea Cellular Ltd. v. Deputy Commissioner of Income Tax (2008) 301 ITR 407 (Bom) has expressly negatived on identical contention on behalf of the Revenue. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result into an epic tome. Besides, it would be impossible for the Assessing Officer to complete all the assessments which have to under gone scrutiny at its hand. In the above view, it is clear that once a query has been raised during the assessment proceedings and the Petitioner has responded to the query to the satisfaction of the Assessing Officer as is evident from the fact that the Assessment Order dated 9th March, 2005 accepts the Petitioner's claim for deduction under Section 80IA/IB of the Act. It must follow that there is due application of mind by the Assessing Officer to the issue raised. The above observations apply on all fours to this Petition, so far as the Revenue's submission of no change of opinion is concerned. 11. The further submission of Mr. Walve that in the absence of the Assessing Officer adjudicating upon the issue it cannot be said that the Assessing Officer had formed an opinion during the regular assessment proceedings leading to the order dated 30 January 2018. An adjudication would only be on such issue where the assessee's submissions are not acceptable to the Revenue, then the occasion to decide a lis would arise i.e. adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e were already considered by his predecessor/Assessing Officer in course of scrutiny assessment and were accepted and the claim of the assessee/petitioner was allowed after detailed investigation by raising queries and considering the reply and supporting materials submitted by the assessee/petitioner in response to those queries in course of scrutiny assessment, in view of these facts substantiated by record, even if there may not be any discussion in the body of the assessment order passed under Section 143(3) of the Act over which an assessee has no control as to how to an assessing officer is write an assessment order, it shall be presumed that on the aforesaid two issues/claims, in course of scrutiny assessment, Assessing Officer had already formed an opinion before allowing the said claims and action of the successor Assessing Officer reopening the relevant assessment on the very self-same material without making out any case against the assessee/petitioner that some new material has come to his knowledge or possession which were suppressed or not disclosed by the assessee/petitioner at the time of scrutiny assessment, is nothing but a mere change of opinion and in facts and ..... 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