TMI Blog2023 (6) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the reasons recorded by Respondent No. 1 indicates that the Respondent No. 1 has relied upon facts and figures available from the audited account. It appears that there was no tangible material available on record to conclude that income had escaped assessment. The ratio in the case of Ananta Landmark [ 2021 (10) TMI 71 - BOMBAY HIGH COURT] is clearly applicable to the facts of this case. Thus AO has acted in excess of the limit of his jurisdiction to reopen the assessment in the exercise of powers under section 147 r.w.s. 148 of the Act. Decided in favour of assessee. - WRIT PETITION (L) NO. 31560 OF 2021 - - - Dated:- 27-6-2023 - DHIRAJ SINGH THAKUR AND KAMAL KHATA, JJ. For the Petitioner : Mr. K. Gopal a/w. Mr. Om Kanda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modus operandi of the business activities undertaken during the year under consideration. Also mention if there is any change in activities or modus operandi as compared to previous years. iv. Details of information as per Annexure-A and Annexure- B enclosed to this notice. 4. The Petitioner vide letter dated 20th September 2017 issued response, 6th October 2017 submitted explanation on exclusion/ deduction of certain items of income while computing Book Profits u/s 115JB, 24th October 2017 explained deductibility of expenditure made and 24th November 2017 whereby the Petitioner submitted documents and details sought and during assessment proceedings provided copies of return of income, computation of income and financial stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odernisation levy was to be kept separately distinct from the funds of NPCIL to be used for specific purposes and was not to be construed as part of the general sales income derived from the business. The levy so collected was earmarked and transferred to respective reserve funds for meeting the capital or revenue expenditure which was the sole responsibility of the DAE and any surplus of the funds so utilised was to be invested in specified securities and the uninvested amount would carry interest @ 12 % return which would again form part of the reserve funds. Additions had been made to the aforesaid income i.e. the respective levies and the interest income earned from the investment in securities made from the respective reserve funds con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to the extent of amount of ₹4,89,49,733 as explained above, has escaped assessment. 7. Petitioner submitted objections on 22/24th November 2021 to the proposed action whereby all material facts and explanations, were reiterated in addition to the material were fully and truly disclosed in the original assessment. The objections were based inter alia on the grounds that reopening beyond four years was not based on any tangible material, there was no failure to disclose fully and truly material facts for the assessment, the action was based on change of opinion not supported by any tangible material, sanction was not in accordance with section 151 of the Act, etc. The said objections were rejected by an order dated 2nd Decembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged that the same is purely a question of fact and at most a mixed question of fact and law consequently this Court in its writ jurisdiction should not interfere and the matter ought to be relegated to the CIT (A) for a decision thereon placing reliance on decisions in the case of Export Credit Guarantee Corporation (I) Ltd v ACIT Ors Writ Petition No. 502 of 2012 (Bom) paragraph 8. and CIT VI vs M/s Usha International Ltd ITA No. 2026/2010 dated 21-9-12 (Del). It was further urged that the issue of allowability of deduction would be decided during the finalization of reopened assessment. It was also contended that since there was no finding either positive or negative during the original assessment proceedings there was no question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment on a change of opinion. It is held that while considering the material on record, one view is conclusively taken by AO, it would not be open for the AO to reopen the assessment based on the very same material and take another view. 13. We are unable to agree with the contentions of the Respondents on all counts. In our view, the reliance placed on the decision in the case of M/s Consolidated Photo Finvest Ltd. (supra) in an affidavit was unconscionable and misleading in as much as the full bench of the Delhi High Court has dissented from the decision in the case of CIT v Usha International Ltd. [2012] 348 ITR 485 where it was held that the principle of change of opinion cannot be a basis for reopening completed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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