TMI Blog2022 (9) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer for issuance of notice. In the instant case, the said notices, which are issued to the petitioner, have been furnished to the petitioner and conclusion drawn by the AO for reopening of assessment is that the AO received insight portal information to the effect that the petitioner firm is in business of lucky draw networking scheme and that no other tangible assets were handled by the firm other than financial transactions. Though Mr.Darshan Patel has made valiant attempt to contend before this Court that information sought for while issuing notices under sections 143(2) and 142(1) of the Act, details have been produced. The fact remains that the Assessing Officer did not possess this insight portal information which has been relied upon for issuance of the notices under section 148 of the Act. As such, the contention raised by learned counsel appearing for the petitioner requires to be considered for the purpose of outright rejection and it stands rejected. Whether while giving approval under section 151 of the Act, there has been no due application of mind by the said authority? - The information which was secured by the Assessing Officer subsequent to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ening assessment for the assessment years 2016-2017 and 2017-2018 ? 3. Since the contentions raised, grounds urged, defence pleaded in these two petitions are common and impugned notices issued under section 148 of the Act also being the same and identical, these two petitions are taken up together for consideration and disposed of by this common order. 4. Petitioner, in the respective petitions, is a partnership firm had filed its return of income for the respective assessment years 2016-2017 and 2017-2018 declaring total income. Notices under section 143(2) and 142(1) were issued to the petitioner, pursuant to which, reply was filed and even notice under section 142(1) of the Act calling upon the petitioner to produce the details and documents had also been replied by the petitioner and subsequently, order under section 143(2) of the Act came to be passed by assessing the income of the petitioner. 5. A notice under section 148 of the Act came to be issued to the petitioner for respective assessment years which was accompanied by the reasons for such reopening and the petitioner on receipt of said notice filed its objections which came to be rejected and by orders dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (viii) Special Civil Application No.21030 of 2017 Mumtaz Haji Mohmad Memon Vs ITO (ix) Special Civil Application No.16171 of 2017 Vijay Harishchandra Patel Vs ITO dated 6.12.2017 (x) Special Civil Application No.16790 of 2017 Narendrakumar M.Patel Vs ITO dated 7.2.2018 (xi) (2018) 92 taxmann.com 74 (Guj) Sunrise Education Trust Vs ITO dated 19.2.2018 (xii) (2002) 124 Taxman 641 (Guj) Sagar Enterprise Vs ACIT dated 26.12.2001. (xiii) (2022) 139 taxmann.com 562 (SC) Prin. CIT Vs Fibres and Fabrics Int. P. Ltd. Dated 25.4.2022. 7. Per contra, Mr.Karan Sanghani, learned counsel appearing for the respondent - revenue would support the impugned orders by contending and drawing our attention to the reply affidavit, more particularly, with reference to paragraphs 5 and 6, to buttress his argument that on account of insight portal disclosing modus operandi adopted by the petitioner gave rise for reopening the assessment as certain amounts had escaped assessment on account of this material not being available at the time of scrutiny and same being the basis on which reassessment is now being proposed to be done, it cannot be gainsaid by assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Supreme Court in Central Provinces Manganese Ore Co. Ltd. v. ITO [1991] 191 ITR 662, for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential. At that stage, the final outcome of the proceeding is not relevant. In other words, at the initiation stage, what is required is reason to believe , but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the Assessing Officer is within the realm of subjective satisfaction (see ITO v. selected Dalurband Coal Co.P. Ltd. [1996] 217 ITR 597 (SC) ; Raymond Woolen Mills Ltd. v. ITO [1999] 236 ITR 34 (SC). 9. Thus, the expression reason to believe would mean and include that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that mere change of opinion cannot form the basis for reopening of assessment. 11. Mr.Darshan Patel, learned counsel appearing for the petitioner has vehemently contended that very same Assessing Officer, who scrutinized, assessed and framed assessment orders, is the one who has issued the notices under section 148 of the Act is the basis on changed opinion and reopening of assessment is not permissible, cannot be accepted for the simple reason that notices for reopening as well as reasons assigned for reopening would clearly indicate that it is the material which has come to the knowledge of the Assessing Officer i.e. insight portal details to his knowledge conforce issuance of notices under section 148 of the Act. As to whether assertion made by the revenue in the impugned notices is to be sustained or otherwise would be subject matter of scrutiny by the Assessing Officer. At the time of issuance of notices for reopening, the Assessing Officer would not be required to finally ascertained the fact that by arriving at the conclusion on the basis of any evidence as held by the Honourable Apex Court in Rajesh Jhaveri Stock Brokers P. Ltd (supra) referred to hereinabove. 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner, who has elaborately and vehemently argued assailing the impugned notices and orders, has relied upon a catena of judgments (13 judgments). It is trite law that while relying upon case laws in support of their submissions, learned advocates need not file or rely upon repetitive judgments on the same issue by furnishing same to the Court so as to inflate the records. Any judgment which has been relied upon has to be independent, separate and distinct from one which has already relied upon for its application to the facts of the case concerned. By furnishing or submitting multiple judgments on the same issue, as has happened in the instant case i.e. furnishing several citations on same issue with reference to discussion made by the Honourable Apex Court and this court on expression reason to believe and change of opinion as applied to different facts would not change the facts of the present case. Despite our request to learned counsel appearing for the petitioner as to whether he proposes to rely upon all the judgments on the same issue, he has insisted for all the thirteen judgments referred to in the list of authorities being considered by this Court of w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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