TMI Blog2024 (4) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... should be followed unreservedly by the subordinate authorities and the order is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. Admittedly, the order of the ITAT, which is challenged in appeal in this Court, has not been suspended. Therefore, the order of the ITAT is certainly binding on the Revenue. Respondents also submitted that assessment can be opened on the basis of order passed in another assessment year which is a settled position in law. Though we will not enter into a debate with him/Respondents on this aspect, still to issue notice itself the Revenue has to, in the facts of the case, cross the first hurdle of the proviso u/s 147 of the Act and if they do not, as we have observed above, the reopening will be bad in law. We hereby quash and set aside the impugned notice. Consequently the order on objections also is hereby quashed and set aside. - K. R. SHRIRAM DR. NEELA GOKHALE, JJ. For the Petitioner : Mr. Prakash Shah a/w. Mr. Jas Sanghavi and Mr. Prabhat Chaurasia i/b. PDS Legal. For the Respondents : Mr. Prakash Chandra Chhotaray. ORAL JUDGMENT (PER K.R. SHRIRAM, J.) : 1. Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome once again in the hands of petitioner will result in double taxation which was not permissible. The CIT(A) also held that the transactions between SNCML and petitioner are not sham transactions as alleged by the Assessing Officer. 4. Thereafter, respondent no. 1 preferred an appeal before the Income Tax Appellate Tribunal (ITAT) where the order dated 31st March 2015 passed by the CIT(A) was impugned. The appeal came to be dismissed by an order dated 23rd August 2018. It is petitioner s case, as alleged in paragraph 24 of the petition, that the department had filed an appeal impugning the order dated 23rd August 2018 passed by the ITAT which appeal came to be withdrawn in view of the monetary limits. In the affidavit in reply, this fact has not been denied. In paragraph 37 of the affidavit in reply, it is only stated With reference to paras 19 to 28, I offer no comments. However, I deny any averment contrary to the material on record. I say that the entire matter has been discussed in foregoing paragraphs . This fact has not been discussed in anywhere else in the affidavit in reply. 5. This was followed by a notice dated 29th March 2019 issued under Section 148 of the Act propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reason to believe were already a subject matter of consideration during the original assessment proceedings and, therefore, this proposed reopening is purely on the basis of change of opinion, which is not permissible. 7. In the affidavit in reply, respondents have basically reiterated what has been stated in the reason to believe and in the order on objections. Mr. Chhotaray submitted that even if the reason to believe does not even make an allegation that there was failure to truly and fully disclose material facts, if the factum of failure to disclose can be culled down from the reasons in support of the notice seeking to reopen assessment, that will certainly be not fatal to the assumption of jurisdiction under Sections 147 and 148 of the Act. 8. The proviso to Section 147 of the Act provides that reopening of an assessment is not permissible after expiry of four years from the end of the relevant assessment year unless assessee has failed to truly and fully disclose necessary facts required for assessment. In the reasons recorded to believe escapement of income from assessment, there is not even an allegation that there was any failure on the part of petitioner to truly and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings. As held by the Division Bench of this Court in Aroni Commercials Ltd. v/s. Deputy Commissioner of Income Tax-2(1) (2014) 44 taxmann.com 304 (Bombay) the settled law is once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment. It is not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. The only requirement is that the Assessing Officer ought to have considered the objection now raised in the grounds for issuing notice under Section 148 of the Act during the original assessment proceedings. In the case at hand, the Assessing Officer having raised a query and petitioner having replied to it, it follows that the query raised was subject of consideration of the Assessing Officer while passing the assessment order dated 31st March 2015. In our view, the reopening of 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 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order is to be drafted is the sole domain of the Assessing Officer and it is not open to an assessee to insist that the assessment order must record all the questions raised and the satisfaction in respect thereof of the Assessing Officer. The only requirement is that the Assessing Officer ought to have considered the objection now raised in the grounds for issuing notice under Section 148 of the Act, during the original assessment proceedings. There can be no doubt in the present facts as evidenced by a letter dated 8 September 2012 the very issue of taxability of sale of shares under the head capital gain or the head profits and gains from business was a subject matter of consideration by the Assessing Officer during the original assessment proceedings leading to an order dated 12 October 2010. It would therefore, following that the reopening of the assessment by impugned notice dated 28 March 2013 is merely on the basis of change of opinion of the Assessing Officer from that held earlier during the course of assessment proceeding leading to the order dated 12 October 2010. This change of opinion does not constitute justification and/or reasons to believe that income chargea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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