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TMI Blog2024 (2) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... received a notice dated 12th December 2019 issued under Section 142(1) of the Act calling upon petitioner to provide documents and details with regard to capital asset that was sold during the assessment year. Petitioner vide its Chartered Accountant's letter dated 11th December 2020, provided details of the property sold, consideration received, etc., the property being Flat No. 802, 8th floor of Boulevard-III, Ghatkopar (West), Mumbai 400086 (the said flat). Later, petitioner received one more notice dated 16th February 2021 issued under Section 142(1) of the Act, seeking details with regard to same property. Once again, vide petitioner's Chartered Accountant's letter dated 17th February 2021, petitioner provided all details and documents. 3. An assessment order came to be passed on 28th April 2021, in which, it is stated that the case was selected for limited scrutiny assessment on the issues relating to investments in immovable property, capital gains / income on sale of property and in view of material available on record, no addition on the issues is made. The assessment order also states that the assessment is passed accepting the income computed as per order under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) read as under: 36. We would agree with the submissions of Mr. Pardiwalla that if change of opinion concept is given a go by, that would result in giving arbitrary powers to the Assessing Officer to reopen the assessments. It would in effect be giving power to review which he does not possess. The Assessing Officer has only power to reassess not to review. If the concept of change of opinion is removed as contended on behalf of the Revenue, then in the garb of re-opening the assessment, review would take place. The concept of change of opinion is an in-built test to check abuse of power by the Assessing Officer. As held in Dr. Mathew Cherian (Supra), whether under old or new regime of reassessment, it is settled position that the issues decided categorically should not be revisited in the guise of reassessment. That would include issues where query have been raised during the assessment and query have been answered and accepted by the Assessing Officer while passing the assessment order. As held in Aroni Commercials (supra) even if assessment order has not specifically dealt with that issue, once the query is raised it is deemed to have been considered and the explanation accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d/or reasons to believe that income chargeable to tax has escaped assessment." 37. The Assessing Officer does not have any power to review his own assessment when during the original assessment petitioner provided all the relevant information which was considered by him before passing the assessment order under section 143(3) of the Act dated 23rd December 2018. Petitioner had debited an amount of Rs. 6,41,87,931/- on account of software consumables in the profit and loss account and a detailed break-up of the said expenses were submitted before the Assessing Officer during the course of assessment proceedings vide a letter dated 6th December 2018. It is settled law that proceedings under section 148 cannot be initiated to review the earlier stand adopted by the Assessing Officer. The Assessing Officer cannot initiate reassessment proceedings to have a relook at the documents that were filed and considered by him in the original assessment proceedings as the power to reassess cannot be exercised to review an assessment. In petitioner's case the Assessing Officer having allowed the amount of software consumables as a revenue expenditure now seeks to treat the same as capital expe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Act should be set aside when the reassessment was initiated on a change of opinion where the same was discussed and verified by the Assessing Officer at the time of original assessment proceedings. 7. In the affidavit in reply filed through one Ratnesh Kumar Mishra affirmed on 20th June 2022, the stand has taken is that the entire scheme of reassessment is changed by insertion of new provisions through Finance Act 2021 and, therefore, the concept of change of opinion does not survive. Mr. Suresh Kumar in fairness agreed that since the court has specifically, in its judgment in Siemens Financial Services Private Limited (supra), held that the concept of change of opinion would still apply, if the court comes to conclusion that there was change of opinion, then certainly the impugned order passed under Section 148A(d) of the Act and the impugned notice issued under Section 148 of the Act, both dated 31st March 2022 have to be quashed. 8. In our view, it is clear case of change of opinion. We say this because the issue as to whether there was a short term capital gain with respect to the said flat, was the subject matter of consideration during the assessment proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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