TMI Blog2023 (2) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... . As seen from the reasons recorded that there was no new material which had come to the notice of the Assessing Officer and the entire reference in the reasons recorded is only to the material on record. In the absence of any new tangible material available with the AO and in view of the fact that there is a general presumption that an order of assessment u/s 143(3) has been passed after proper application of mind and considering the fact that in the present case, the AO had sought clarification with regard to the assets which had been written off, details whereof were submitted during the course of the proceedings, it certainly goes to show that the issue with regard to depreciation had been gone into by the said AO without making any disallowance as regards the claim of the depreciation. We have no hesitation in holding that the reassessment proceedings were nothing but a case of change of opinion , which does not comply with the jurisdictional foundation under section 147 - Decided in favour of assessee. - WRIT PETITION NO. 1090 OF 2016 - - - Dated:- 8-2-2023 - DHIRAJ SINGH THAKUR KAMAL KHATA, JJ. For the Petitioner : Mr. Madhur Agrawal with Mr. Upendra Lok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Explanation 1 to Section 147 if the Act. Issue notice u/s. 148. 3. Objections to the reopening were filed by the petitioner and came to disposed of vide order dated 27th January 2016. 4. Counsel for the petitioner states that the reopening the assessment was bad and illegal inasmuch as there was no tangible material with the Assessing Officer which would warrant the reopening of the assessment and that the reassessment proceedings were nothing but a change of opinion . It was also urged that not only all the material facts were disclosed to the Assessing Officer during the assessment proceedings under section 143(3) of the Act, but the same had been considered in depth leading to the passing of the order of assessment dated 27th January 2016. Reliance was placed upon the Apex Court judgment in the case of Commissioner of Income-tax Vs. Kelvinator of India Ltd. 320 ITR 561 (SC) to urge that in the guise of reassessment, the Assessing Officer cannot be permitted to review its earlier order of assessment. 5. Reply affidavit has not been filed by the revenue, however, counsel for the revenue, Mr.Kumar stated that the Assessing Officer, during the regular assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Assessing Officer justifying reopening of the assessment or can it be said to be a case of review and change of opinion by the said Officer. 10. In Kalyanji Mavji Co. Vs. Commissioner of Income Tax, West Bengal-II (1976) 102 ITR 287 (SC) , it was held : On a combined review of the decisions of this Court the following tests and principles would apply to determine the applicability of s. 34(1) (b) to the following categories of cases: (1) Where the information is as to the true and correct state of the law derived from relevant judicial decisions; (2) Where in the original assessment the income liable to tax has escaped assessment due to oversight, inadvertence or a mistake committed by the Income-tax officer. This is obviously based on the principle that the tax-payer would not be allowed to take advantage of an oversight or mistake committed by the Taxing Authority; (3) Where the information is derived from an external source of any kind. Such external source would include discovery of new and important matters or knowledge of fresh facts which were not present at the time of the original assessment; (4) Where the information may be o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it wrote off Rs.1.81 crores in the profit and loss account for the said financial year. Return of income was then filed declaring a loss of Rs.4,27,46,522/-. In the computation of income, the petitioner added back the said amount of Rs.1.81 crore with the business income and did not claim it as a deduction in computing its taxable income but claimed depreciation on the basis of written down value of the assets. The return was accompanied by a computation of the total income, balance-sheet, audit report under section 44AB in Form No.3CB and 3 CD, and Profit and Loss Account. 14. On 13th February 2014, pursuant to the queries raised during personal hearing, the assessee claims that it submitted details regarding the list of assets written off during the relevant financial year. It was, thus, urged that all the material had been placed before the Assessing Officer, including the fact that the petitioner had written off fixed assets of the value of Rs.1.81 Crore as also the fact that it had made a claim on account of depreciation. 15. From the aforementioned facts, it is, thus, clear from the record that the Assessing Officer did enquire into the claim of depreciation and had cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income-tax (Appeals) was before the Assessing Officer. That order stands till today. What the Assessing Office has said about the order of the Commissioner of Income-tax (Appeals) while recording reasons under Section 147 he could have said even in the original orders of assessment. Thus, it is a case of mere change of opinion which does not provide jurisdiction to the Assessing Officer to initiate proceedings under Section 147 of the Act. It is also equally well settled that if a notice under Section 148 has been issued without the jurisdictional foundation under Section 147 being available to the Assessing Officer, the notice and the subsequent proceedings will be without jurisdiction, liable to be struck down in exercise of writ jurisdiction of this court. If reason to believe be available, the writ court will not exercise its power of judicial review to go into the sufficiency or adequacy of the material available. However, the present one is not a case of testing the sufficiency of material available. It is a case of absence of material and hence the absence of jurisdiction in the Assessing Officer to initiate the proceedings under Section 147/148 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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