P Praveen Kumar Chennai v. Dcit Non Corporate Circle 5 1 Chennai

B Smc In The Income Tax Appellate Tribunal B Smc Bench Chennai Before Shri Chandra Poojari Accountant Member I T A No 2212 Mds 2017 Assessment Year 2010 11 Shri P Praveen Kumar 443 N 138 Mint Street Sowcarpet Chennai 79 Vs The Dcit Non Corporate Circle 5 1 Chennai 6 Pan Aappp 8156 P Appellant Respondent Appellant By Mr S Sridhar Advocate Respondent By Mr B Sagadevan Jcit D R Date Of Hearing 21 11 2017 Date Of Pronouncement 06 12 2017 O R D E R Per Chandra Poojari Accountant Member This Appeal Is Filed By The Assessee Aggrieved By The Order Of The Learned Commissioner Of Income Tax A 5 Chenna I Dated 20 07 2017 Pertaining To Assessment Year 2010 11 Ita No 2212 Mds 2017 2 2 The Assessee Has Raised The Following Grounds F Or Adjudication 1 The Order Of The Commissioner Of Income Tax App Eals 5 Chennai Dated 20 07 2017 In L T A No 76 Cit A 5 2016 17 Fo R The Above Mentioned Assessment Year Is Contrary To Law Facts And In The Circumstances Of The Case 2 The Cit Appeals Erred In Confirming The Re Ass Essment While Rejecting The Plea Of Change Of Opinion Theory Without Assign Ing Proper Reasons And Justification And Ought To Have Appreciated That Th E Order Of Re Assessment Was Passed Out Of Time Invalid Passed Without Jur Isdiction And Not Sustainable Both On Facts And In Law 3 The Cit Appeals Failed To Appreciate That The Change Of Opinion As Evident From Para 8 Of The Original Assessment Orde R Dated 8 3 2013 Read With The Re Assessment Order On The Issue Of The Pr Esumption Of Gp Would Vitiate The Re Assessment On Various Facets 4 The Cit Appeals Failed To Appreciate That The Lack Of Tangible Materials Would Also Constitute Another Valid Ground To Subst Antiate The Grounds Challenging The Validity Of Re Assessment 5 The Cit Appeals Erred In Sustaining The Additi On Of 6 25 3561 On The Presumption Of Escapement Of Income In The Determin Ation Of Gross Profit Without Assigning Proper Reasons And Justification 6 The Cit Appeals Failed To Appreciate That The Presumption Of Inflation In Gross Profit Was Wholly Unjustified And Ought To Ha Ve Appreciated That The Stock Transfer And The Subsequent Stock Journal Ent Ry Coupled With The Ita No 2212 Mds 2017 3 Explanation With Respect To The Reduction In Market Value Would Negate Such Presumption Of Inflation 7 The Cit Appeals Failed To Appreciate That The Addition Of 6 25 3561 Was Wrong Erroneous Unjustified Incorrect And No T Sustainable In Law 8 The Cit Appeals Failed To Appreciate That Ther E Was No Proper Opportunity Given Before Passing Of The Impugned Or Der And Any Order Passed In Violation Of The Principles Natural Justi Ce Would Be Nullity In Law 2 1 I Ground Nos 1 To 4 Is Relating To Reopen Ing Of Assessment Ii Ground Nos 5 To 7 Is Relating To Sustaining Th E Addition By Ld Cit A On The Ground Of Escapement Of Income In The Determination Of Gross Profit Iii Ground No 8 Is Relating To Proper Opportunity Not Given To Assessee By Ld Cit A 3 The Brief Facts Of The Case Are That The Assess Ee Is An Individual Engaged In The Business Of Retailers Wholesalers Of Gift Articles The Case Was Selected For Scrutiny Under Cass And The Assessment Completed On 08 03 2013 Determining Th E Taxable Income As 30 38 030 Notice U S 148 Was Issued To The Ass Essee On 27 03 2015 And The Assessment Was Reopened For The Following Reasons Ita No 2212 Mds 2017 4 For Difference In Gross Profit The Assessee Had S Ubmitted The Following Reconciliation Statement Gross Profit As Per Stock Summary Statement 85 96 3 90 28 Less A Inflation Of Gp In The Stock Summary Statement Due To Stock Journal Vourcher As Per Annexure 8 06 642 44 B Omission In The Closing Stock Due To Nil Realizable Value 9 43 982 93 C Reduction In Market Value Of Stock Items With Respect To Average Cost As Per Annexure 6 25 356 51 23 75 981 88 Gross Profit As Per Trading Account 62 20 408 The Assessees Explanation Regarding A And C Ab Ove Has Been Accepted Without Assigning Any Reason At C Above The Ass Essee Has Himself Computed The Difference In The Valuation Of The Closing Stoc K Items At Cost Or Market Price Whichever Is Lower Accordingly The Ao Was Of The Opinion That The Sum Of 6 25 356 Was Not Disclosed By The Assessee And Hence The A Mount 6 25 356 Was Added To The G P Aggrieved By The O Rder Of Ld Assessing Officer The Assessee Carried The Appeal Before The Ld Cit A On Appeal The Ld Cit A Confirmed The Action Of The Ld Assessing Officer Against The Order Of Ld Cit A Now The Assessee Is In Appeal Before Us Ita No 2212 Mds 2017 5 4 Before Us Ld A R Submitted That The Original A Ssessment In This Case Was Completed U S 143 3 Of The Act Vide Order Dated 08 03 2013 Subsequently The Assessment Was Reopen Ed By Recording The Reasons Mentioned Hereinabove I E To Consider The Valuation Of Closing Stock On Account Of G P Rates He Submitted That At The Time Of Original Assessment From The Soft C Opy Of Accounts Produced By The Assessee In The Form Of Tally The Stock Summary Was Extracted The Ld Assessing Officer Has Compared I T With The P L A C Produced By The Assessee There Was Re Conciliation Of The Gross Profit With Stock Summary Statement And Trading Acc Ount The Ld A R Drew Our Attention To The Page 2 3 4 5 Of The O Riginal Assessment Order Dated 08 03 2017 And Also He Submitted That T Here Was An Addition Of 9 43 982 Towards Gross Profit Due To Difference In Stock Summary Thus He Submitted That The Re Opening O F Assessment U S 147 On The Same Materials Records For The Purp Ose Of Bringing The Gp Additions On Account Of Discrepancy In G P R Ate Due To Difference In Stock Summary Is Bad In Law Further The Ld A R Submitted That There Should Be Some Outside Materia L Which Could Be Said To Have Come To The Knowledge Of The Ld Asses Sing Officer After Ita No 2212 Mds 2017 6 The Original Assessment Was Completed He Submitted That This Is The Case Of Mere Change Of Opinion On The Basis Of Same Set Of Facts He Drew Our Attention To The Following Judgments Of Th E Jurisdictional High Court A In The Case Of Karti P Chidambaram Vs Acit In W P No 1589 Of 2017 Dt 13 11 17 B In The Case Of Jayanthi Natarajan Vs Acit In W P No 1905 Of 2017 Dt 14 09 17 C In The Case Of M S Tanmac India Vs Dcit In Tax Case Appeal No 1426 Of 2007 Vide Order Dated 19 12 2016 Wherein Held That Department Cannot Be Permitted To Avail All The Ext Ended Time Limit In The Absence Of Any New Or Tangible Materia L When The Time For Scrutiny Assessment Had Elapsed Prior To The I Ssue Of Impugned Notice U S 148 Of The Act 5 On The Other Hand Ld D R Submitted That In The Assessees Case It Was Opened Within 4 Years From The End Of Releva Nt To Assessment Year As Per The Provisions Of Section 147 It Is Only In A Case Where A Scrutiny Assessment Was Earlier Made The Ao Is B Arred From Reopening Assessment Unless Income Chargeable Ita No 2212 Mds 2017 7 To Tax Escaped Assessment By Reason Of Failure On The Part Of The Assessee To Disclose Fully And Truly All Material F Acts Necessary For Assessment In The Original Return Or During The Ear Lier Proceedings He Submitted That As Per Explanation 1 To Section 147 Merely Producing A Document From Which Material Evidence C Ould Have Been Gathered By The Ao With Due Diligence Will No T Necessarily Amount To Full And True Disclosure The Assessee Mi Ght Have Produced The Details During The Course Of Assessmen T Proceedings But The Ao Failed To Draw Correct Conclusion That T Oo Be The Reason To Reopen The Assessment 6 We Have Heard Both The Parties And Perused The Material On Record The Main Contention Of The Ld A R Is That The Assessment Herein Was Originally Completed U S 143 3 Of The A Ct So That The Assessment Can Be Re Opened U S 147 Of The Act Sub Ject To Fulfillment Of Conditions Precedent Which Include The Conditio N That The Ao Must Have Reason To Believe That Income Chargeable T O Tax Is Escaped Assessment It Is True That The Original Assessment Order Was Passed U S 143 3 Of The Act The Ao Cannot Disturb The F Inality Of The Original Assessment Passed U S 143 3 Of The Act A T His Whims And Ita No 2212 Mds 2017 8 Caprice He Must Have Reason To Believe Within The Meaning Of Sec 147 Of The Act The Scope And Effect Of Sec 147 Of The Act Substituted With Effect From 01 04 1989 As Also Se Ctions 148 To 152 Are Substantially Different From The Provisions As They Stood Prior To Substitution Under The Old Provisions Of Section 1 47 Separate Clauses A And B Laid Down The Circumstances Und Er Which Income Escaping Assessment For The Past Assessment Years C Ould Be Assessed Or Reassessed To Confer Jurisdiction Unde R Section 147 A Two Conditions Were Required To Be Satisfied First Ly The Assessing Officer Must Have Reason To Believe That Income Pr Ofits Or Gains Chargeable To Income Tax Have Escaped Assessment A Nd Secondly He Must Also Have Reason To Believe That Such Escap Ement Has Occurred By Reason Of Either Omission Or Failure On The Part Of The Assessee To Disclose Fully Or Truly All Material Fa Cts Necessary For His Assessment Of That Year Both These Conditions Were Conditions Precedent To Be Satisfied Before The Assessing Offi Cer Could Have Jurisdiction To Issue Notice Under Section 148 Read With Section 147 A But Under The Substituted Section 147 Existence Of Only The First Condition Suffices In Other Words If The Assessing Officer For Whatever Ita No 2212 Mds 2017 9 Reason Has Reason To Believe That Income Has Escape D Assessment It Confers Jurisdiction To Reopen The Assessment It I S However To Be Noted That Both The Conditions Must Be Fulfilled If The Case Falls Within The Ambit Of The Proviso To Section 147 The Case A T Hand Is Covered By The Main Provision And Not The Proviso 6 1 As Seen From The Above The Finality Of The As Sessment Passed U S 143 3 Of The Act Can Be Disturbed By In Itiating The Re Assessment Proceedings Only So Long As The Ingred Ients Of Sec 147 Are Fulfilled And There Should Be Reason To Believ E That The Income Chargeable To Tax Has Escaped Assessment And It Doe S Not Matter That There Has Been No Failure Or Omission On The P Art Of The Assessee To Disclose Full And True Particulars At The Time O F The Original Assessment There Is Nothing In The Language Of Sec Tion 147 To Unshackle The Assessing Officer From The Need To Sh Ow Reason To Believe When Section 147 Was Recast With Effect F Rom April 1 1989 The Legislature Sought To Replace The Expression R Eason To Believe With The Expression For Reasons To Be Recorded By Him In Writing But There Were Representations Against The Proposal And Bowing To Them The Original Expression Was Restored This Aspect O F The Matter Has Ita No 2212 Mds 2017 10 Been Brought Out By The Supreme Court In The Case O F Cit V Kelvinator In 320 Itr 561 As Follows However One Needs To Give A Schematic Interpretat Ion To The Words Reason To Believe Failing Which We Are Afraid S Ection 147 Would Give Arbitrary Powers To The Assessing Officer To Reopen Assessments On The Basis Of Mere Change Of Opinion Which Cannot Be Per Se Reason To Reopen We Must Also Keep In Mind The Conceptual Di Fference Between Power To Review And Power To Reassess The Assessin G Officer Has No Power To Review He Has The Power To Reassess But Reassessment Has To Be Based On Fulfilment Of Certain Preconditions And If The Concept Of Change Of Opinion Is Removed As Contended On Beh Alf Of The Depart Ment Then In The Garb Of Reopening The Assessment Review Would Take Place One Must Treat The Concept Of Change Of Opi Nion As An In Built Test To Check Abuse Of Power By The Assessing Offic Er Under The Direct Tax Laws Amendment Act 1987 Parliament N Ot Only Deleted The Words Reason To Believe But Also Inserted The Word Opinion In Section 147 Of The Act However On Receipt Of Repr Esentations From The Companies Against Omission Of The Words Reason To Believe Parlia Ment Reintroduced The Said Expression And Deleted T He Word Opinion On The Ground That It Would Vest Arbitrary Powers In T He Assessing Officer We Quote Hereinbelow The Relevant Portion Of Circul Ar No 549 Dated October 31 1989 1990 182 Itr St 1 29 Whic H Reads As Follows 7 2 Amendment Made By The Amending Act 1989 To Reintroduce The Expression Reason To Believe In S Ection 147 A Number Of Representations Were Received Against The Omission Of The Words Reason To Believe From Section 147 And Their Substitution By The Opinion Of The Assessing Offi Cer It Was Pointed Out That The Meaning Of The Expression Re Ason To Ita No 2212 Mds 2017 11 Believe Had Been Explained In A Number Of Court Ru Lings In The Past And Was Well Settled And Its Omission From Sec Tion 147 Would Give Arbitrary Powers To The Assessing Office R To Reopen Past Assessments On Mere Change Of Opinion To Alla Y These Fears The Amending Act 1989 Has Again Amended Se Ction 147 To Reintroduce The Expression Has Reason To Believ E In Place Of The Words For Reasons To Be Recorded By Him In Wri Ting Is Of The Opinion Other Provisions Of The New Section 147 However Remain The Same 6 2 It Would Be Appropriate At This Juncture To Ta Ke A Brief Survey Of A Few Decisions Of The Supreme Court Which Have Infused Meaning And Content To The Expression Reason To Believe A Ppearing In Section 147 6 3 A Constitution Bench Of The Supreme Court In A N Lakshman Shenoy V Ito 1958 34 Itr 275 Sc Spea King Through S K Das J Held That An Assessment Cannot Be Reope Ned On The Basis Of A Mere Guess Gossip Or Rumour This Was I N The Context Of The Pre 1948 Law Relating To Reassessment Under Whi Ch The Assessing Officer Was Empowered To Reopen The Assessment On T He Basis Of Definite Information Though This Judgment Is Bas Ed On The Phraseology Of Section 34 Of The 1922 Act As It Exi Sted Before 1948 Ita No 2212 Mds 2017 12 Which Did Not Contain The Expression Reason To Bel Ieve That Principle Was Adopted By The Supreme Court While De Aling With Section 34 Of The Act After The Amendment Made In 1 948 In That Year The Words Definite Information Were Replaced By T He Words Reason To Believe While Expatiating On The New Words A Three Judge Bench Of The Supreme Court Speaking Through V Ramaswami J In S Narayanappa V Cit 1967 63 Itr 219 Sc Opined As Under Page 222 Again The Expression Reason To Believe In Sectio N 34 Of The Income Tax Act Does Not Mean A Purely Subjective Satisfact Ion On The Part Of The Income Tax Officer The Belief Must Be Held In Good Faith It Cannot Be Merely A Pretence To Put It Different It Is Open To The Court To Examine The Question Whether The Reasons For The Belief Hav E A Rational Connection Or A Relevant Bearing To The Formation O F The Belief And Are Not Extraneous Or Irrelevant To The Purpose Of The Section To This Limited Extent The Action Of The Income Tax Officer In Sta Rting Proceedings Under Section 34 Of The Act Is Open To Challenge In A Court Of Law See Calcutta Discount Co Ltd V Ito 1961 41 Itr 191 Sc 6 4 In Sheo Nath Singh V Aac Of I T 1971 82 Itr 14 7 Sc The Supreme Court Hegde J Observed As Under Pag E 153 There Can Be No Manner Of Doubt That The Words Re Ason To Believe Suggest That The Belief Must Be That Of An Honest A Nd Rea Sonable Ita No 2212 Mds 2017 13 Person Based Upon Reasonable Grounds And That The I Ncome Tax Officer May Act On Direct Or Circumstances Evidence But Not On Mere Suspicion Gossip Or Rumour The Income Tax Officer Would Be Acting Without Jurisdiction If The Reason For His Belief T Hat The Condi Tions Are Satisfied Does Not Exist Or Is Not Material Or Rele Vant To The Belief Required By The Section The Court Can Always Exami Ne This Aspect Though The Declaration Or Sufficiency Of The Reason S For The Belief Cannot Be Investigated By The Court 6 5 It Was Further Observed That The Reasons Themse Lves Cannot Be Stated To Be Beliefs Which Would Be An Obvious Self Contradiction 6 6 The Entire Law As To What Would Constitute Re Ason To Believe Was Summed Up By H R Khanna J Speaking For The Supreme Court In Ito V Lakhmani Mewal Das 1976 1 03 Itr 437 Sc The Following Principles Were Laiddown A The Powers Of The Assessing Officer To Reopen An Assessment Though Wide Are Not Plenary B The Words Of The Statute Are Reason To Believe And Not Reason To Suspect C The Reopening Of An Assessment After The Lapse Of Many Years Is A Serious Matter Since The Finality Of A Judicial Or Quasi Judicial Proceedings Are Sought To Be Disturbed It Is Essen Tial That Before Taking Action To Reopen The Assessment The Requirements O F The Law Should Be Satisfied Ita No 2212 Mds 2017 14 D The Reasons To Believe Must Have A Material Bea Ring On The Question On Escapement Of Income It Does Not Mean A Purely Subjec Tive Satisfaction Of The Assessing Authority The Reaso N Be Held In Good Faith And Cannot Merely Be A Pretence E The Reasons To Believe Must Have A Rational Con Nection With Or Relevant Bearing On The Formation Of The Belief Ra Tional Connection Postulates That There Must Be A Direct Nexus Or Liv E Link Between The Material Coming To The Notice Of The Assessing Offi Cer And The Formation Is Belief Regarding Escapement Of Income F The Fact That The Words Definite Information Which Were There In Section 34 Of The Act Of 1922 Before 1948 Are Not There In Section 147 Of The 1961 Act Would Not Lead To The Conclusion That Action Can Now Be Taken For Reopening An Assessment Even If The Infor Mation Is Wholly Vague Indefinite Far Fetched Or Remote 6 7 In Cit V Kelvinator India Ltd 320 Itr 561 T He Supreme Court Observed As Under Page 564 However One Needs To Give A Schematic Interpretat Ion To The Words Reason To Believe Failing Which We Are Afraid S Ection 147 Would Give Arbitrary Powers To The Assessing Officer To R Eopen Assessments On The Basis Of Mere Change Of Opinion Which Cannot Be Per Se Reason To Reopen We Must Also Keep In Mi Nd The Conceptual Difference Between Power To Review And P Ower To Reassess The Assessing Officer Has No Power To Rev Iew He Has The Power To Reassess But Reassessment Has To Be B Ased On Fulfilment Of Certain Preconditions And If The Conc Ept Of Change Of Opinion Is Removed As Contended On Behalf Of The Depart Ment Then In The Garb Of Reopening The Assessment Revi Ew Would Take Ita No 2212 Mds 2017 15 Place One Must Treat The Concept Of Change Of Opi Nion As An In Built Test To Check Abuse Of Power By The Assessing Officer It Was Also Observed That After April 1 1989 The Assessing Officer Has Power To Reopen Provided There Is Tangible Mat Erial To Come To The Conclusion That There Is Escapement Of Income This Judgment Has Laid Emphasis On Two More Aspects That There C An Be No Review Of An Assessment In The Guise Of Reopening And That A Bare Review Without Any Tangible Material Would Amount To Abuse Of The Power 6 8 Having Regard To The Judicial Interpretation Pl Aced Upon The Expression Reason To Believe And The Continued U Se Of That Expression Right From 1948 Till Date We Have To Un Derstand The Meaning Of The Expression In Exactly The Same Manne R In Which It Has Been Understood By The Courts The Assumption Of Th E Revenue That Somehow The Words Reason To Believe Have To Be Un Derstood In A Liberal Manner Where The Finality Of An Intimation Under Section 143 3 Is Sought To Be Disturbed Is Erroneous And Misconce Ived As Pointed Out Earlier There Is No Warrant For Such An Assump Tion Because Of The Language Employed In Section 147 Ita No 2212 Mds 2017 16 7 In The Present Case The Reasons Disclosed That The Ao Reached The Belief That There Was An Escapement Of Income On Verification Of The Documents Which Were Already O N Record And It Was Seen That Gross Profit Rate Declared By The Ass Essee Is Very Low Hence The Ao Have A Reason To Believe That Income Chargeable To Tax Has Escaped Assessment Within The Ambit Of Sect Ion 147 Of The Act And The Case Was Re Opened A Notice U S 148 Wa S Served On The Assessee On 27 03 2011 There Was No Whisper That The Ao Came To Know This From Any Tangible Fresh Material Which C Ame To His Possession After Conclusion Of Original Assessment So That There Was An Escapement Of Income This Is Nothing But A Rev Iew Of The Earlier Proceedings And An Abuse Of Power By The Ld Assess Ing Officer Both Strongly Deprecated By The Supreme Court In The Cas E Of Cit Vs Kelvivator Supra 7 1 The Reasons Recorded By The Ao In The Present Case Do Confirm Our Apprehension About The Harm That A Less Strict Interpretation Of The Words Reason To Believe Vis Vis And Order U S 143 3 And Cast To The Tax Regime Since There Was No Whisper In The Reasons Recorded Of Any Tangible Material Whic H Came To Ita No 2212 Mds 2017 17 Possession Of The Ao Subsequent To The Order Passe D U S 143 3 Of The Act It Reflects An Arbitrary Exercise Of The Power Conferred U S 147 Of The Act At This Stage It Is Pertinent To Mention That There Was A Cleavage Of Opinion Even To Consider The G P Rate As The Basis For Determining The Income Of Assessee 7 2 In Our Opinion When There Was A Cleavage Of O Pinion To Consider G P Rate To Determine The Taxable Income O F Assessee While Framing The Original Assessment Itself How The Ao Could Use The Same Documents Which Were Already On Record To Re Open The Assessment Which Was Concluded U S 143 3 Of The Act 7 3 Thus In Our View On The Basis Of Above Said F Acts It Can Be Concluded That The Present Provisions Of The Sectio N 147 Of The Act Does Not Enable The Ao To Exercise His Jurisdiction For Reopening The Concluded Assessment Without Any Tangible Fresh Ma Terials In That View Of The Matter It Is Not Appropriate On The Pa Rt Of The Ao To Jump To A Conclusion Only On The Basis Of Value Low G P Rate To Reopen The Assessment When The Same Documents Which Were Alr Eady Brought Ita No 2212 Mds 2017 18 On Record At The Time Of Original Assessment He Fa Iled To Take A Cognizance Of That Documents And Framed The Origina L Assessment We Are Well Aware That It Is Neither Necessary Nor Mandatory That At The Time Of Recording Of Reasons Itself The Ao Sho Uld Come To A Conclusion That There Will Be Option Of Escaped Ass Essment As Per Reason Recorded The Only Requirement In Law Is Th E Ao Prima Facie Must Have A Reason To Believe On The Basis Of Mater Ial In His Possession That Income Is Escaped Assessment In Facts Of The Present Case The Ao Completed The Original Assessm Ent On The Basis Of Records Available With Him And There Was No Alle Gation By The Ao That Assessee Has Not Disclosed Correct Profit In The Return Filed For The Assessment Year Or Detail Of G P Was Not Availa Ble Before The Ao When The Assessment Was Framed U S 143 3 Of The A Ct Undoubtedly The Information On The Basis Of Which Assessment Was Reopened Which Was Already In The Possession Of Th E Ao And It Was Not Subsequently Came To His Possession After The C Ompletion Of The Original Assessment So As To Reveal Understatement Of The Sale Value In Such Circumstances The Ao Is Not Empower Ed Under The Act To Reopen The Assessment Ita No 2212 Mds 2017 19 7 4 The Ld D R Made A Plea Before Us That Product Ion Before Assessing Officer Of Books Of Accounts Or Other Evi Dence From Which Material Evidence Could With Due Diligence Have Be En Discovered By The Assessing Officer Will Not Necessarily Amount T O Disclosure Within The Meaning Of The First Proviso To Sec 147 Of The Act We Find That This Situation Has Been Considered By The Full Ben Ch Of The Delhi High Court In Its Judgment In The Case Of Cit Vs Kelvin Ator India Ltd 256 Itr 1 And The Full Bench Observed That The Said Submission Is Fallacious An Order Of Asse Ssment Can Be Passed Either In Terms Of Sub S 1 Of S 1 43 Or Sub S 3 Of S 143 When A Regular Order Of Assessment Is Passe D In Terms Of The Said Sub S 3 Of S 143 A Presumption Can Be Raised That Such An Order Has Been Passed On Application Of Mind It Is Well Known That A Presumption Can Also Be Raised To The Effect That In Terms Of Cl E Of S 114 Of The Indian Evidence Act Judic Ial And Official Acts Have Been Regularly Performed If It Be Held That A N Order Which Has Been Passed Purportedly Without Application Of Mind Would Itself Confer Jurisdiction Upon The Ao To Reopen The Proce Eding Without Anything Further The Same Would Amount To Giving A Premium To An Authority Exercising Quasi Judicial Function To Tak E Benefit Of Its Own Wrong 7 5 It Is Clear From The Observations Made Above That The Full Bench Of The Delhi High Court Has Taken A View That In A Situation Ita No 2212 Mds 2017 20 Where According To The Ao He Failed To Apply His Mi Nd To The Relevant Material In Making The Assessment Order He Cannot Take Advantage Of His Own Wrong And Reopen The Assessment By Takin G Recourse To The Provisions Of S 147 We Find Ourself In Respec Tful Agreement With The View Taken By The Full Bench Of The Delhi High Court 7 6 It Is Further To Be Seen That The Legislatur E Has Not Conferred Power On The Ao To Review Its Own Order Therefore The Power Under S 147 Cannot Be Used To Review The Order In The P Resent Case Though The Ao Has Used The Phrase Reason To Believ E Admittedly Between The Date Of The Order Of Assessment Sought To Be Reopened And The Date Of Formation Of Opinion By The Ao Not Hing New Has Happened Therefore No New Material Has Come On Re Cord No New Information Has Been Received It Is Merely A Fresh Application Of Mind By The Same Ao To The Same Set Of Facts And The Rea Son That Has Been Given Is That The Some Material Which Was Avai Lable On Record While Assessment Order Was Made Was Inadvertently E Xcluded From Consideration This Will In Our Opinion Amount To Opening Of The Assessment Merely Because There Is Change Of Opinio N The Full Bench Of The Delhi High Court In Its Judgment In Th E Case Of Ita No 2212 Mds 2017 21 Kelvinator Supra Referred To Above Has Taken A C Lear View That Reopening Of Assessment Under S 147 Merely Because There Is A Change Of Opinion Cannot Be Allowed In Our Opinion Therefore In The Present Case Also It Was Not Permissible For Asses Sing Officer To Issue Notice Under S 148 7 7 Further In The Case Of Cit Vs Ashley Services Ltd In 2014 369 Itr 209 Mad Wherein Held That Reading Of The Reasons Given For Reopening Of Assessment Shows That It Was Nothing But A Review Of The Orders Passed U S 143 3 Of The Act Relating To The Assessment Years 1996 97 1997 98 Consequently Even Though The Assessment Was Re Opened Then A Limitation Period Of 4 Years There Being No Fresh Material To Disturb The Reasoning A Rrived At Reopening Of Assessment Was Unsustainable 7 8 In The Case Of Dishman Pharmaceuticals And Chem Icals Ltd Vs Dcit In 2012 346 Itr 245 Guj Held That The Reasons For Reopening Of Assessment Did Not Make Out Any Case Of Escapement Of Income From Assessment On Account Of The Assess Ee Not Disclosing Fully And Truly All Material Facts Neces Sary For The Same Quiet Apart From The Fact That No Such Suggestion I S Recorded In The Ita No 2212 Mds 2017 22 Reasons Independently Also There Is No Finding Tha T The Aos Stand In The Reasons Recorded Can In Any Manner Be Constru Ed As Suggesting That The Income Escapement On Account Of The Assessee Not Disclosing The Material Facts 7 9 In The Case Of Debashis Moulik Vs Acit In 20 15 370 Itr 660 Cal Held That Escapement Of Income Could Not Be Used To Reopen An Assessment On Facts Information Docume Nts Which Were Before The Ao Or Could Have Been Easily Found By Hi M While Making The Assessment 8 If We Go Through The Above Judgements All The D Ocuments Relating To The Assessee On Computation Of Income F Or The Subject Assessment Year Were Before The Ao There Is No All Egation By The Ao That The Document Relied For Recording Reasons W Ere Not At All Before The Ao Therefore It Cannot Be Said That T Here Was Escapement Of Income Or That The Reasons For Beli Eving That There Was Escapement Of Income Were Valid The Ao Canno T Say That Yesterday He Was Ignorant And He Is Wise Today As All The Materials Are Available Before Him When He Was Framing Origi Nal Assessment U S 143 3 Of The Act If He Failed To Take A View On The Subject The Ita No 2212 Mds 2017 23 Same Documents Should Not Be Used To Reopen The Ass Essment As It Was Before Him And He Could Have Been Easily Found By Him While Framing The Assessment He Cannot Himself Use The Same Documents To Reopen The Concluded Assessment Which Is Nothing But Abuse Of Law 9 In The Present Case The Reasons As Recorded By The Assessing Officer Clearly Indicate That There Was N O Tangible Fresh Material Adverting To The Reasons Recorded For Issu Ing Reopening Notice Similarly The Decision Of Bombay High Cour T In The Case Dr Amins Pathology Laboratory 252 Itr 673 It Has B Een Observed That If Any Item Has Escaped From Assessment Which Otherwise Is Includible Within The Assessment And The Assessing Officer Notices It Subsequently By Raising Of Some Information Receive D By Him One Cannot Say That It Constitutes Change Of Opinion I N The Present Case The Ao Reopened The Assessment Originally Complete D By Him On The Basis Of The Same Records As Were Available Before Him While Completing The Original Assessment And There Was N O New Tangible Material That Had Come To His Possession On The Bas Is Of Which The Assessment Was Reopened The Relevant Records Incl Uding The Books Ita No 2212 Mds 2017 24 Of Account Of The Assessee Were Duly Examined By Th E Ao During The Course Of Assessment Proceedings Completed U S 143 3 Of The Act And Only After Being Satisfied With The Details Th E Assessment Of The Assessee Was Completed Therefore The Reopening Of The Assessment By The Ao Was Bad In Law As It Was Base D Merely On A Change Of Opinion And The Assessment In Pursuance T Hereof Was Invalid And Liable To Be Quashed In View Of The A Bove We Find No Substance In The Submissions Raised By Ld D R Acc Ordingly We Quash The Reassessment Order 10 At This Stage We Refrain From Going Into The O Ther Grounds Raised By The Assessee 11 In The Result The Appeal Of Assessee Is Allowe D Order Pronounced On 06 Th December 2017 Sd Chandra Poojari Accountant Member Chennai Dated The 06 Th December 2017 K S Sundaram Copy To 1 Appellant 3 Cit A 5 0 1 23 Dr 2 Respondent 4 Cit 6 1 45 6 Gf