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TMI Blog2022 (9) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 9.3.2022 and 17.8.2021 (Annexures-L and I) respectively which are impugned in the respective Special Civil Applications. 6. It is the contention of Mr.Darshan Patel, learned counsel appearing for the petitioner that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that there is no fresh material available before the authorities. He would also contend that it is not change of opinion by the Assessing Officer which has necessitated reopening of assessment but Assessing Officer having unearthed information through insight portal, it had resulted in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision 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 there should be subjective satisfaction by objective assessment available with the Assessing 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 Assessing Officer for reopening of assessment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 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. This Court in exercise of powers vested under Article 227 of the Constitution of India would not take over the decision making powers of the statutory authority. The Honourable Apex Court in the case of D.N. Jeevaraj Vs Chief Secretary, Government of Karnataka, reported in (2016) 2 SCC 653, has held that the High Court c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnishing 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 which we have referred to few hereinabove as being applicable to the facts of the said cases. In fact, on the same issue, several judgments have been furnished. The Honourable Apex Court in the case of Rashmi Metaliks Ltd. & Anr Vs Kolkata Metrop. Dev. Auth. & Ors, (2013) 10 SCC 95 has held that such practice requires to be deprecate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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