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TMI Blog2024 (10) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent. 2. Rule returnable forthwith. Learned Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule for the respondent no.1. 3. This petition under Article 226 of the Constitution of India is filed challenging notice under Section 148 of the Income Tax Act 1961 dated 28.03.2021 for Assessment Year 2016-17 primarily on the ground that notice issued is without jurisdiction on account of change of opinion by the Assessing Officer. The consequential order of assessment under Section 147 read with Section 144B dated 31.03.2022 and the notice of demand under section 156 dated 31.03.2022 are also challenged. 4. Considering the issue invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue of deduction under Section 80 IC has been gone into by the Assessing Officer, despite that the order rejecting objections dated 23.03.2022 was passed aggrieved by which this petition is filed. During pendency of this petition, Assessment Order dated 31.03.2022 under Section 147 read with Section 144B was passed and demand was raised. 6. Learned Senior Advocate Mr. Tushar Hemani for the petitioner-assessee submitted that the notice issued under Section 148 of the Act dated 28.03.2021 for Assessment Year 2016-17, is bad in law on the following grounds: 6.1. In this case the assessee has fully and truly disclosed all material facts necessary for assessment for A.Y. 2016-17. 6.2. Reason to believe by the Assessing Officer that income cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of CIT Vs. Kelvinator of India Ltd. reported in (2010) 320 ITR 561. Reliance is also placed on the decision of this Court in Special Civil Application No.5651 of 2021 decided on to submit that reopening on the ground of mere change of opinion is not permissible. 7. Opposing the petition, learned Senior Standing Counsel Mr. Karan Sanghani for the respondents submitted that notice under Section 148 of the Act was issued since the income chargeable to tax has escaped assessment in relation to deduction claimed by the assessee under Section 80IC of the Act. 7.1. Further from the body of assessment order, it is evident that the issue in relation to deduction under Section 80IC of the Act has not been referred to and therefore the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t alongwith supporting documents. Please furnish the date of incorporation of Roorki Unit as the said unit claimed 80IC with supporting documents." 9. To the said notice, assessee responded on 08.12.2018 with the details called for in relation to deduction under Section 80IC of the Act. Thereafter, assessment order under Section 143 (3) dated 24.12.2012 was passed accepting the return. 9.1. Thereafter, notice under section 148 was issued for the reason that the assessee has stated that M/s. Alpha Pharma Roorkee was merged with assessee company w.e.f. 01.10.2014. Further, the assessee company as stated above has claimed deduction u/s. 80IC of the Act to the tune of Rs. 1,21,59,856/- in respect of profit earned by Alpha Pharma Roorkee (und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has remained, viz., that where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to re-open the assessment. Therefore, post-1st April, 1989, power to re-open is much wider, However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But reassessment has to be based on fulfillment of certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as fully explained and thereafter the order of assessment under Section 143 (3) was passed. Therefore, in our opinion, the reasons recorded for reopening of the assessment under Section 147 for Assessment Year 2016-17 would amount to mere change of opinion by the respondents. 9.7. In view of the above facts, we are of the opinion that the notice dated 28.03.2021 for reopening of assessment cannot be sustained. In this view of the matter validity or otherwise of the claim for deduction under section 80IC of the Act is not necessary to be examined. 10. In the result, the petition succeeds and is accordingly allowed. Impugned notice under Section 148 dated 28.03.2021 is hereby quashed and set aside. Consequently, Assessment Order under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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