TMI Blog2023 (1) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... its return of income on 31st October, 2007 declaring nil income after claiming exemption under section 11 of the Income Tax Act. Initially, the scrutiny assessment under section 143(3) was completed on 20.11.2009 at Nil income. Thereafter, the assessment was reopened by issuing notice under section 148 of the Act dated 07.02.2014 to assess the income which has not been applied by the assessee for charitable purpose as well as the income from stamp fee which was considered as accrued but not taken the entire as source of receipt. The re-assessment was completed under section 143(3) / 147 on 30th March, 2015. Thereafter, the CIT(E) on perusal of the assessment record noticed that the assessee has taken loan from Government of Uttar Pradesh and Work Bank. The balances of the same have been shown at Rs. 23,12,21,756/- as on 01st April, 2006. The assessee claimed accrued interest of Rs. 2,91,78,400/- as expenditure as per the income and expenditure account. The CIT(E) observed that since the interest was only accrued but not paid till filing of the ITR, it was not to be allowed as expenditure in view of the provisions of section 43B of the Income Tax Act. It was further noticed by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant have been carefully examined. The facts of the case clearly demonstrate that the A.O. did not have any tangible material on- the basis of which the reassessment proceedings u/s 147 were Initiated. It is trite law that such tangible material should have come into the possession of the A.O. subsequent to the passing of the original assessment order dated 20.11.2009. If the reassessment proceedings are initiated on the basis of the very same material which was available at the time of the original assessment proceedings, then, it would amount to a mere change of opinion not reason to believe as has been extensively discussed in the Full Bench decision of the Delhi High Court In CIT Vs. Usha International (ITA No.2026 of 2010 In the present case there is no such material which came into the possession of the after the original assessment proceedings were concluded on the Bake of which the reassessment proceedings were initiated. The AO has passed the reassessment order on the same set of documents/reasons /facts which were also the basis of reassessment assessment proceedings in PORAX to him at the time of first proceedings was only a change of opinion which is not pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings, the appellant has raised the additional of appeal on this issue which is as under: 1. The Additional Ground Numbers 1 of the Additional Grounds of Appeal reads as under- BECAUSE the Assessing Officer has further erred and acted illegally in passing the Assessment Order without providing four weeks' time to the Appellant after disposing off the objection raised by the assessee against reassessment proceedings on 26/03/2015 which is also against the settled Principals of Law Principals of Natural Justice. In support of Additional Ground Number 1, the Appellant begs to submit as Under i. Without Prejudice to the submissions made herein above, the Appellant begs to submit that the order of rejection dated 26/03/2015 to the objections raised by the Appellant was communicated to the Appellant alongwith Assessment Order dated 30/03/2015 u/s 147/14313) of the Income Tax Act, 1961 on 04/04/2015 which further substantiate the fact that the Appellant was not given sufficient time (at least 4 weeks time) to submit its cross objections/further submissions on the order of rejection as above before completion the reassessment proceedings as above. i. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice .. ........28. We do not, therefore, find that the reasons which have been recorded for reopening the assessment meet and satisfy the statutory preconditions. Those having not being satisfied, there is no alternative but to quash and set aside the impugned notice and the assessment order following the same. 29. As a result of the above discussion, the writ petition succeeds, Rule is made absolute in terms of prayer clause (a). There will not be order as to Costs. 1. The judicial pronouncement given by Hon'ble Income Tax Appellate Tribunal, Pune in the case of Nirmala V. Sanklecha, Nashik v. Income- tax Officer reported in Cross Objection No. 35/Pun/2016 dated 23-02- 2018. The relevant extract of the said judgement is reproduced as under:- .........7. Controverting the submissions made by DR, the Id. AR submitted that a perusal of order sheet entry reproduced in the statement of facts clearly show that the objections raised by the assessee were not disposed of by passing a speaking order. Not admitting but assuming, even if it is considered to be a valid order for disposing of objections, sufficient opportunity was not afforded to assessee by Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was sought to be done as a result of change of his previous opinion. That as already stated in Ground No.2, most of the cases cited by the Assessing Officers in his / her rejection order to the objections raised by the Appellant against re-assessment proceedings u/s 147/148 of the Income Tax Act 1961 are not relevant in the Appellant's case since the Assessing Officer already accepted the Appellant's reply to the queries raised u/s 154 of the Income Tax Act, 1961 and corresponded with the Audit team through written correspondence with a request to drop the audit para which substantiates the fact that the same issue on which the Assessing Officer was satisfied at one stage, cannot subsequently be treated as fresh REASONS TO BELIEVE that the income of the Appellant has escaped assessment on the same issue on which he / she was satisfied with the Appellant's submissions. This further substantiates the fact the same was merely a Change of Opinion by the Assessing Officer which must not be treated as REASON TO BELIEVE . Thus, the entire assessment proceedings are also void ab-initio on this issue. . . The judgment so delivered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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