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TMI Blog2023 (8) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... nd set aside the impugned notice at Annexure `A' to this petition; (b) Pending the admission, hearing and final disposal of this petition, to stay the implementation and operation of the notice at Annexure `A' to this petition and stay the further proceedings for the Assessment Year 2012-13; 2. Heard learned Senior Advocate Mr. Tushar Hemani assisted by learned advocate Ms. Vaibhavi Parikh for the appellant and learned advocate Mr. Karan Sanghani for learned advocate Mrs. Kalpana Raval for the respondent. 3. With consent of the learned advocates for the respective parties, the matter is taken up for final hearing. Hence, Rule returnable forthwith. Mr. Karan Sanghani, learned advocate waives service of notice of Rule for and on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter, the impugned notice dated 28.3.2019 came to be issued u/S.148 of the Act seeking to reopen the case of the petitioner for the year under consideration. The petitioner filed return of income on 29.4.2019 pursuant to the aforesaid notice. The petitioner also provided copy of return of income and requested the respondent authority to supply copy of reasons for the reopening. 6. Vide communication dated 7.5.2019, the respondent authority supplied copy of reasons for reopening of the case of the petitioner. The petitioner submitted objections vide letter dated 23.5.2019 against the reopening and raised various objections. The objections were disposed of by the revenue vide its order dated 27.9.2019. 7. Learned counsel for the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order for the Assessment Years 2004-05 to 2008-09 and the said order was accepted by the department and no further appeal was preferred by the revenue. * It is further also submitted by the learned counsel for the petitioner that there is no failure on the part of the petitioner to fully and truly disclosing the materials when the original assessment order was passed. He has further contended that the AO has no jurisdiction to take any action under Section 147 of the Act, merely because of change of opinion or to have an opinion different from that of his predecessor on the same set of facts. It is vehemently submitted by the learned advocate for the petitioner that the present case involves change of opinion which is not permissible i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terials on record, it is an undisputed fact that the original assessment order came to be passed by the revenue on 30.1.2015 and thereafter on 28.3.2019 that is after the period of 4 years the impugned notice u/S.148 came to be issued seeking to reopen the case of the petitioner. On perusal of the reopening notice u/S.147 dated 7.5.2019, the revenue has observed that on scrutiny of profit and loss account, balance sheet, computation of income, it was found that the assessee had claimed and allowed deduction u/S.80- IA of the Act. 10. The petitioner in objections dated 28.5.2019, has objected against the reopening of the case on the ground that the revenue cannot open after 4 years from the completion of the assessment. On perusal of the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.143(2) / 142(1) and order sheet entries. It is important to highlight here that material facts relevant for the assessment on the issue under consideration were not filed during the course of assessment proceedings and the same may be embedded in annual report, audited P & L account, balance sheet and books of account in such a manner that it would require due diligence by the AO to extract these information. For aforesaid reasons, it is not a case of change of opinion by the AO." 12. Thus, on considering the facts it is clear that the petitioner had truly and fully disclosed all the material facts which were called upon by the revenue at the relevant time. The reopening of the assessment is nothing but a mere change of opinion on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "reason to believe" failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to reassess. But re-assessment has to be based on fulfillment of certain precondition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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