TMI Blog2024 (3) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the report of the Directorate General of Goods and Services Tax Intelligence, based upon which respondent no. 2, had assessed the income of the petitioner as indicated above. The same report has been considered as a reason for re-opening the assessment in the impugned order, which clearly would indicate that it was not a case of mistake, but was a change of opinion, as the same material, which cannot be sustainable in law. Though reliance is also placed on the amended section 147 of the Income Tax Act, it does not assist her case for two reasons, (i) the amendment having been brought into effect from 1.4.2021, cannot be applied to the case of the petitioner and (ii) even otherwise, though the expression reason to believe has been deleted therefrom, what has been held in Kelvinator of India [ 2010 (1) TMI 11 - SUPREME COURT ] regarding the concept of change of opinion being treated as an in-built test to check abuse of power by the Assessment Officer, in absence of power to review, would continue to hold the field. Reopening notice set aside - Decided in favour of assessee. - M.S. SONAK AVINASH G. GHAROTE , JJ. For the Petitioner : Mr Parag Rao and Mr Akhil Parrikar, Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was added to the income from the business and profession of the Assessee. The total income of the assessee and the tax payable accordingly was computed and demand notice with penalty notice under Section 274 read with section 271(1)(c) of the Income Tax Act was directed to be issued to the petitioner. 8. Though the petitioner had filed an appeal against this assessment order dated 28.12.2018 before the Commissioner of Income Tax (Appeals), the same came to be withdrawn in the light of the acceptance of the application of the petitioner under the vivad se viswas scheme 2020. 9. On 27.3.2021 (page 28) notice under section 148 of the Income Tax Act came to be issued by respondent no. 2 to the petitioner, informing it that the department proposes to assess/reassess the income for the Assessment Year 2016-2017. The reasons thereof, for reopening the assessment, were furnished to the petitioner on 27.1.2022(page 29), to which objections were filed by the petitioner on 28.1.2022 (page 32) contending, that there was no new fact/information available with the Assessment Officer and therefore the assessment could not be reopened merely on the change of opinion. 10. The objections filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieve , was inserted, held that post 1.4.1989 the power to reopen, assessment was much wider. However it was also held that the expression reason to believe needed to be given a schematic interpretation failing which, section 147 would give arbitrary powers to the Assessment Officer to reopen assessment on the basis mere change of opinion , which cannot be per se reason to reopen. This was more so, in light of the conceptual difference between the power to review and the power to reassess and whereas the Assessment Officer had no power to review, he had the power to assess, but reassessment has to be based on the fulfillment of certain preconditions and if the concept of change of opinion is removed then in the garb of reopening the assessment the review would take place. It was also held that even while considering the expression reason to believe as inserted in Section 147 of the Income Tax Act w.e.f. 1.4.1989, one must treat the concept of change of opinion as an inbuilt test to check abuse of power by the Assessment Officer, hence after 1.4.1989 the Assessment Officer has power to reopen, provided there is tangible material to come to the conclusion that there is escapement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It would be material to note that, the deletion of the expression has reason to believe as inserted by the amending Act 1989 in section 147 has taken place, by the Finance Act, 2021, w.e.f. 1.4.2021. Since the present petition, deals with the reopening of the assessment for the financial year 2016-2017, the position as prevailing then, would have to be taken into consideration for the purpose of testing the impugned order dated 2.2.2022. 18. A perusal of the assessment order dated 28.12.2018 would indicate that it takes into consideration the report of the Directorate General of Goods and Service Tax Intelligence to come to a conclusion that there was a large-scale suppression of sale by the petitioner and therefore it was concluded that the assessee had not offered sales amounting to Rs. 3,07,96,304/- to tax in its return of income and after considering the gross profit of the assessee as per the audit report to be 0.78% had added gross profit at the rate of 1% i.e Rs. 3,07,963/- to the income of the business and profession of the assessee. 19. As against this the notice dated 27.1.2022 (page 29) giving the reasons for reopening the assessment in the case of the petitioner does n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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