TMI Blog2023 (11) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... -facie the information which formed the basis of re-opening itself does not fall within the meaning of the term information under the 1st Explanation to Section 148 of the Act and hence, the re-opening is not permissible as it clearly falls within the purview of a change of opinion which is impermissible in law. Decided in favour of assessee. - K.R. SHRIRAM DR. NEELA GOKHALE, JJ. For the Petitioner : Dr. K. Shivaram, Sr. Advocate i/b Mr. Rahul Hakani For the Respondents-Revenue Department : Mr. Suresh Kumar. JUDGMENT (PER DR. NEELA GOKHALE J) :- 1. Rule. Rule made returnable forthwith. By consent, Petition is taken up for final hearing at the admission stage. 2. Petitioner assails notice dated 30th July 2022 issued under Section 148 of the Income Tax Act, 1961 ( Act ), approval under Section 151 of the Act granted by the Principal Chief Commissioner of the Income Tax ( PCCIT ), Mumbai, communication/letter dated 28th May 2022 seeking explanation and details from Petitioner to facilitate the Jurisdictional Assessing Officer ( JAO ) to pass an order under Section 148A(d) of the Act, Order dated 29th July 2022 passed under Section 148A(d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were being forwarded to it. Petitioner was called upon to respond in support of its claim to enable Respondent to pass an order under Section 148A(d) of the Act. 5. Petitioner filed its objections to the letter dated 28th May 2022 and explained its stand on the sale of the plot of land to Regency Nirman Limited. However, Respondent No. 1-Assessing Officer passed an order dated 29th July 2022 under Section 148A(d) of the Act holding that sale consideration offered was Rs. 12 Crores was lesser than the stamp duty valuation of Rs. 16.50 Crores, inviting applicability of Section 50C of the Act. The order was passed with prior approval of the PCCIT, Mumbai, followed by notice dated 30th July 2022 under Section 148 of the Act. It is this order, approval and consequent notice, which are assailed in the present Petition. 6. Dr. K. Shivaram, Senior Advocate, contends that the AO, in the original assessment order had dealt with in detail the taxability of transaction of sale of the plot of land. In paragraph 5 of the order, the AO has recorded his finding on the issue of long term capital gains including the fact of deduction of compensation of Rs.6 Crores. Thereafter an audit memo da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the income chargeable to tax has escaped assessment means.- (i)......... (ii) any final objection raised by the Comptroller and Auditor General of India to the effect that the assessment in the case of the assessee for the relevant assessment year has not been made in accordance with the provisions of this Act. Dr. Shivaram submitted that the re-opening is bad in law as the change of opinion by the AO is based on information in the form of an objection raised by the internal auditors, i.e., the Additional Commissioner of Income Tax (Audit)-1, Mumbai ( ACIT ) and not by the Comptroller and Auditor General of India ( CAG ). Hence, that cannot be the basis of re-opening of assessment and tantamounts to a change of opinion. 8. Dr. Shivaram has placed reliance on the following decisions: 1) Commissioner of Income-tax v. Narcissus Investments P. Ltd. [2019]417 ITR 512 (Bom) 2) Commissioner of Income-tax v. Rajan N. Aswani [2018] 403 ITR 30 (Bom) 3) Bakhtawar Construction Co. Pvt. Ltd. v. The Deputy Commissioner of Income in Writ Petition No. 1400 of 2014. 4) Malini Ayyappa Naicker (Now Dead) through I.R. and Ors. v. Seth Manghraj U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 50C of the Act to the transaction of sale while issuing the original assessment order. (c) An audit memo dated 29th March 2019 raised an objection regarding applicability of Section 50C of the Act. (d) The audit memo was raised by an internal audit of the Department and not by CAG as required by the provision which was, in effect prior to the amendment which came into force w.e.f. 1st April 2022, and applicable to the present case. (e) The AO namely, Mr. Rajesh Meshram conveyed his objections to the audit memo maintaining that the original assessment order was correct. (f) The ACIT once again maintained its objections. This time the said Mr. Rajesh Meshram accepted that the AO did not properly examine the allowability of Rs. 6 Crore expense under the long term capital gains head. Hence, the audit objection was accepted leading to re-opening of the assessment of the income of Petitioner. (g) Relying upon the decision of the Apex Court in the matter of Union of India v. Ashish Agarwal, the notice under Section 148 of the Act dated 21st April 2021 issued under the old law was treated as notice under Section 148A(b) of the Act. 11. The admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer has to record the consideration bestowed on all issues raised by him during the assessment proceeding even where he is satisfied then it would be impossible for the Assessing Officer to complete all the assessments which are required to be scrutinized by him under Section 143(3) of the Act. 21. Therefore, there can be no doubt in the facts of this case that the reopening of the assessment by the impugned notice is merely on the basis of change of opinion of the assessing officer from that held earlier during the course of assessment proceedings leading to the assessment order dated 30th September 2010. This change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment. 22. The fact that the notice was issued based on audit objections received by the assessing officer also does not find mention in the impugned notice. The assessing officer does not even mention in the impugned notice what was the information that he had received. The assessing officer has, as recorded in the notice, formed an opinion that because the assessee had gifted to Bezan Chenoy as per the Memorandum recording family arrang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer . 14. Considering the admitted factual position and the settled legal position, we find it unnecessary to go into the merits of the case in respect of other submissions advanced by the parties since we are convinced that prima-facie the information which formed the basis of re-opening itself does not fall within the meaning of the term information under the 1st Explanation to Section 148 of the Act and hence, the re-opening is not permissible as it clearly falls within the purview of a change of opinion which is impermissible in law. 15. In view of the above discussion, the Writ Petition is allowed. Rule is made absolute in terms of prayer clause (a), which reads as thus; (a) that this Hon'ble Court may be pleased to issue a Writ of Certiorari or Writ in the nature of Certiorari or any other appropriate Writ, order or direction, calling for the records of the Petitioner's case and after going into the legality and propriety thereof, to quash and set aside (i) Notice u/s 148 dated July 30, 2022 issued by the Respondent No. 1 for AY 2015-16[Ex-Q], (ii) Approval u/s 151 dated 29/7/2022 [Ex-R] (iii) the impugned order dated July 29, 2022 passed un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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