TMI Blog2023 (10) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act could not have been applied. When specific queries were made regarding the sale of land and the assessee had given the required details, it could not be said that there was a failure to disclose fully and truly all material facts so as to assume jurisdiction u/s 148 - In fact, as is evident from the reasons itself, no fresh information of tangible material was on record and it was only an information which was known and explained was made a basis of the notice. Even on account of the concept of change of opinion, inasmuch as, based on the notices issued, the Assessing Officer had already made inquiries into the very same land and on the issue of applicability of Section 50C of the Act, it was not open for the respondent to give a different treatment. It has been held that even in the reasons recorded when there is no allegation that there was any failure on the part of the assessee in not disclosing truly and fully material facts necessary for the assessment, the assumption of jurisdiction to reopen the assessment beyond a period of four years in exercise of powers under Section 147 of the Act is bad in law and contrary to the provisions of Section 137. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued notice under Section 148 of the Act on 28.03.2019 for the A.Y. 2012- 13. In response thereto, the petitioner sought reasons for reopening, which was supplied on 09.04.2019. The petitioner by letter dated 24.04.2019 raised various objections on merits and on law. Vide order dated 15.11.2019, the respondent disposed of the objections and rejected the same. 3. Mr. B.S. Soparkar learned counsel for the petitioner made the following submissions: 3.1 Reading the reasons supplied on 09.04.2019, Mr. Soparkar would submit that there was no failure to disclose fully and truly all material facts. Four years have elapsed from the end of AY 2012-13 and therefore notice under Section 148 is barred by the proviso to Section 147. 3.2 He would submit that the reasons to believe that income has escaped assessment would indicate that it is based on the information which has been received from the DIT (I CI), Ahmedabad, vide letter dated 16.02.2015 with respect to the sale of immovable property. He would submit that this information was available as the assessment order was passed on 19.03.2015. 3.3 Mr. Soparkar would further submit that DIT (I CI), on 24.12.2013 inquired from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer noticed subsequently on his own investigation, it will never amount to change of opinion. 4.2 Mr. Patel would submit that the transaction itself on the basis of subsequent information is found to be bogus transaction. Mere disclosure at the time of original assessment proceedings need not mean that the disclosure was true and full. 4.3 He would submit that by mentioning an incorrect PAN in the sale deed, it is apparent that there was a deliberate attempt of the petitioner to keep herself out of the purview of the income tax department s verification. 5. Having considered the submissions made by the learned counsel for the respective parties, it would be apt to refer to the copy of the reasons supplied. Reading the copy would indicate that the basis of the information which gave the author of the notice the reason to believe is the letter from the DIT (I CI), Ahmedabad, dated 16.02.2015 with respect to the sale of immovable property. What is striking is that this communication of 16.02.2015 is prior to passing of the assessment order on 19.03.2015. Obviously therefore, only after such information was on record that the assessment order was passed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f applicability of Section 50C of the Act, it was not open for the respondent to give a different treatment. 5.5 In several decisions of this Court, it has been held that even in the reasons recorded when there is no allegation that there was any failure on the part of the assessee in not disclosing truly and fully material facts necessary for the assessment, the assumption of jurisdiction to reopen the assessment beyond a period of four years in exercise of powers under Section 147 of the Act is bad in law and contrary to the provisions of Section 137. 5.6 On the concept of change of opinion in the case of Gujarat Power Corporation Limited vs. Assistant Commissioner of Income Tax reported in [2013] 350 ITR 266 (Guj), the Division Bench of this Court considering the question of reassessment under Section 148 of the Act held as under: 42. Bearing in mind these conflicting interests, if we revert back to central issue in debate, it can hardly be disputed that once the Assessing Officer notices a certain claim made by the assessee in the return filed, has some doubt about eligibility of such a claim and therefore, raises queries, extracts response from the assessee, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utiny assessment, notices a claim of exemption, deduction or such like made by the assessee, having some prima facie doubt raises queries, asking the assessee to satisfy him with respect to such a claim and thereafter, does not make any addition in the final order of assessment, he can be stated to have formed an opinion whether or not in the final order he gives his reasons for not making the addition. 44. At this stage, we may examine the decision of the Division Bench of this Court in the case of Praful Chunilal Patel v. M. J. Makwana, Assistant Commissioner of Income Tax, (supra) more closely. This was a case wherein assessment previously framed under section 143(3) of the Act was sought to be reopened within a period of four years from the end of the relevant assessment year. The case concerned assessment year 1993-94 and therefore, the amended section 147 of the Act was applicable. On certain claims of the assessee which were not rejected by the Assessing Officer in the scrutiny assessment, the court held that in cases where the Assessing Officer has not made an assessment of any item of income chargeable to tax while passing the assessment order, it cannot be said th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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