The Income Tax Officer, Srinagar V. Sh. Suhail Ahmed Bhat, Prop. M/s Shifa Traders, Rangparistan, Srinagar

ITA 136/ASR/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7749 (ITAT-AMRITSAR)
• Duration Of Justice: 4 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-04-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 09-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JOGINDER SINGH LD
• Keywords: Reopening of assessment; Additional evidence; Difference of opinion; Assessment record; Reason to believe; Change of opinion
• Section: 143(3); 147; 68; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUN AL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.136(ASR)/2015 ASSESSMENT YEAR:2007- 08 INCOME TAX OFFICER, WARD-3(3), SRINAGAR VS. SH. SUHAIL AHMAD BHAT, PROP. SHIFA TRADERS, RANGPARISTAN, RAINAWARI, SRINAGAR (J&K). [PAN:AIRPB 0054E] (APPELLANT) (RESPONDENT) APPELLANT BY: SH. CHARAN DASS (LD. DR) RESPONDENT BY: SH. JOGINDER SINGH (LD.CA) DATE OF HEARING: 03.04.2019 DATE OF PRONOUNCEMENT: 23.04.2019 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE REVENUE DEPARTMENT AGAINST THE ORDER DATED 19.12.2014 IMPUGN ED HEREIN PASSED BY THE LD. CIT(A), JAMMU U/S. 250(6) OF THE I .T. ACT, 1961 (HEREINAFTER CALLED AS THE ACT) FOR ASST. YEAR:2007-08 WHEREBY THE LD. CIT(A) QUASHED THE ASSESSMENT ORDER DATED 26.02.213 PASSED BY THE ITO, WARD 3(3), SRINAGAR U/S 143(3)/148 OF TH E ACT, RELEVANT FOR THE ASST. YEAR: 2007-08. 2. THE REVENUE DEPARTMENT HAS RAISED THE FOLLOWING GROU NDS OF APPEAL. 1. WHETHER THE COMMISSIONER OF INCOME TAX (APPEALS ), JAMMU WAS RIGHT IN QUASHING THE ASSESSMENT ORDER ON THE ISSUE OF INITIATION OF ITA NO.136/ASR/2015 (A.Y.2007-08) ITO VS. SH. SUHAIL AHMAD BHAT, SRINAGAR 2 PROCEEDINGS U/S 147 AS THE ASSESSEE WAS NOT ABLE TO SUBSTANTIATE THE ALLEGED ADVANCES FROM THE CUSTOMERS. IT WAS FAI LURE ON THE PART OF THE ASSESSEE, IN TRULY AND COMPLETELY DISCLOSING ALL THE MATERIAL FACTS WHICH LED TO INITIATION OF PROCEEDINGS U/S 14 8 AS HELD IN THE FOLLOWING CASES: A. CIT VS. PVS BEEDIES P. LTD. [1999] 237 ITR 13 (SC) : B. CIT VS. SUN ENGINEERING WORKS P. LTD. [1992] 198 IT R 197 (SC): C. ITO VS. SARABHAI M. LAKHANI [2000] 243 ITR 01 (SC) : D. RAYMOND WOOLEN MILLS LTD. VS. ITO [1999] 236 ITR 3 4 (SC): 2. WHETHER THE COMMISSIONER OF INCOME TAX (APPEALS), J AMMU WAS RIGHT IN DELETING THE ADDITION U/S 68 OF THE I.T. A CT, 1961 ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS MADE BY THE AO AS THE RELIEF HAS BEEN MAINLY ALLOWED ON THE BASIS OF ADDITIONAL EVIDENCES PRODUCED DURING THE APPEAL PROCEEDINGS. SUCH EVIDENCES WERE NOT PRODUCED DURING THE ASSESSMENT PROCEEDINGS BUT WERE CLAIMED BY THE ASSESSES TO HAVE BEEN REJECTED BY THE AO AT THE TIM E OF ASSESSMENT. THIS IS NOT THE CASE AS NOTHING IN THE FILE SUGGESTS THAT EVIDENCES WERE PRODUCED AND REJECTED BY THE THEN AO . 3. WHETHER THE COMMISSIONER OF INCOME TAX (APPEALS), J AMMU WAS RIGHT IN DELETING THE ADDITION U/S 68 OF THE I.T. A CT, 1961 ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS MADE BY THE AO AS THE ENTIRE RELIEF STANDS UPON THE ADDITIONAL EVIDENCES PRODUCED BEFOR E THE LD. CIT(A), JAMMU WHICH WERE NOT PRODUCED BY THE ASSESS EE AT THE TIME OF ASSESSMENT DESPITE AMPLE OPPORTUNITIES. IT IS FURTHER PERTINENT TO MENTION THAT A REMAND REPORT WAS SOUGH T ON THE BASIS OF THE AVERMENTS MADE BY THE ASSESSEE DURING THE AP PEAL PROCEEDINGS BEFORE THE LD. CIT(A), WHICH WAS DULY S UBMITTED BY REFUTING THE AVERMENTS MADE BY THE ASSESSEE ON THE BASIS OF ASSESSMENT RECORDS. THE APPELLANT CRAVES TO AMEND OR ADD ANY ONE OR MOR E GROUNDS OF APPEAL. ITA NO.136/ASR/2015 (A.Y.2007-08) ITO VS. SH. SUHAIL AHMAD BHAT, SRINAGAR 3 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT W AS RE- OPENED U/S 147 OF THE ACT AND ADDITION OF RS.99,43,535 /- WAS MADE U/S 68 OF THE ACT, WHICH WAS CHALLENGED BEFORE THE LD. C IT(A) ON THE LEGAL GROUNDS AS WELL AS ON MERITS. THE LD. CIT(A) VIDE IMPUGNED ORDER DATED 19.12.2014 ALLOWED THE APPEAL OF THE ASSESSEE ON LEGAL GROUNDS AS WELL AS ON MERIT AND HELD TH E ADDITION UNDER CHALLENGE AS UNJUSTIFIED AND ACCORDINGLY DELETED THE SAME. FOR THE SAKE OF READY REFERENCE AND BREVITY THE DETE RMINATION PART OF THE ORDER IS REPRODUCED HEREIN BELOW. 8. DETERMINATION THE PRESENT APPEAL IS FILED BY THE APPELLANT AGAINS T THE ORDER OF THE AO MAKING AN ADDITION AMOUNTING TO RS.99,43, 535/- U/S 68 OF THE ACT. THE APPELLANT HAS CONTESTED THE ADDITION ON BOTH LEGAL GROUNDS AS WELL ON MERITS OF THE CASE. B OTH THE CONTENTIONS OF THE APPELLANT ARE ADJUDICATED AS UND ER:- THE APPELLANT HAS ARGUED THAT THE REOPENING OF CASE U/S 148 OF THE ACT IS A MERE CHANGE OF OPINION AND THE ASSU MPTION OF JURISDICTION BY THE AO IS ILLEGAL. THE APPELLANT HA S ARGUED THAT THE DEPOSITS IN BANK ACCOUNT BY THE APPELLANT WERE MADE BASIS FOR REOPENING OF THE CASE AND THOSE BANK DEPO SITS HAVE ALREADY BEEN CONSIDERED IN THE EARLIER ASSESSMENT B Y THE THEN AO WHO HAD APPLIED NET PROFIT RATE ON SUCH BANK DEP OSITS TREATING THE SAME AS TURNOVER OF THE APPELLANT WHIL E CONCLUDING THE ASSESSMENT. THE APPELLANT CONTESTED THAT CONSIDERING WHOLE OF SUCH BANK DEPOSITS AS INCOME O F THE APPELLANT INSTEAD OF THE STAND TAKEN IN EARLIER ASS ESSMENT WITHOUT ANY FRESH INFORMATION OR MATERIAL IN HAND I S MERE CHANGE OF OPINION AND REOPENING OF ASSESSMENT U/S 1 48 OF THE ACT IS NOT PERMISSIBLE UNDER LAW ON ACCOUNT OF CHAN GE IN OPINION. THE APPELLANT HAS PLACED RELIANCE ON THE F OLLOWING DECISIONS OF VARIOUS AUTHORITIES- RELIANCE IS PLACED ON THE JUDGMENT OF HON'BLE SUPRE ME COURT OF INDIA IN THE CASE OF CIT VS KELVINATOR OF INDIA PVT . LTD (2010) 320 ITR 561 IN WHICH THE HON'BLE APEX COURT HELD THAT A FTER 1ST APRIL, 1989, POWER TO REOPEN IS MUCH WIDERHOWEVER, MERE 'CHANGE OF OPINION' CANNOT PER SE BE REASON TO REOP EN. AO HAS POWER TO REASSESS BUT NO POWER TO REVIEW. IF THE CO NCEPT OF 'CHANGE OF OPINION' IS REMOVED, AS CONTENDED ON BEH ALF OF THE DEPARTMENT, REVIEW WOULD TAKE PLACE IN THE GRAB OF REOPENING OF ASSESSMENT. CONCEPT OF 'CHANGE OF OPINION' IS AN IN-BUILT ITA NO.136/ASR/2015 (A.Y.2007-08) ITO VS. SH. SUHAIL AHMAD BHAT, SRINAGAR 4 TEST TO CHECK ABUSE OF POWER BY THE AO. THE HON'BLE COURT FURTHER HELD THAT THERE IS CONCEPTUAL DIFFERENCE BE TWEEN POWER TO REVIEW AND POWER TO REASSESS WHICH IS TO BE KEPT IN MIND. THE AO HAS NO POWER TO REVIEW, HE HAS POWER TO REAS SESS. BUT REASSESSMENT HAS TO BE BASED ON FULFILLMENT OF CERT AIN PRECONDITION AND IF CONCEPT OF 'CHANGE OF OPINION' IS REMOVED, AS CONTENDED ON BEHALF OF THE DEPARTMENT , THEN , I N THE GRAB OF REOPENING THE ASSESSMENT, REVIEW WOULD TAKE PLAC E. THE APEX COURT CONCLUDED THAT MERE CHANGE IN OPINION CA NNOT PER SE BE REASON TO REOPEN. RELIANCE IS PLACED ON THE JUDGMENT OF HON'BLE HIGH COURT OF MADRAS IN THE CASE OF APOLLO HOSPITALS ENTERPRISES LTD VS ACIT (2006) 287 ITR 25 (MAD) IN WHICH THE COURT HELD THA T AO CANNOT REOPEN THE ASSESSMENT BY MERE CHANGE OF OPINION OR BY DRAWING A DIFFERENT INFERENCE FROM THE SAME FACTS A S WERE EARLIER AVAILABLE. ADMITTEDLY, THERE IS NO CHANGE O F LAW AND NO FRESH MATERIAL HAD COME ON RECORD. IT IS A CASE OF MERE CHANGE OF OPINION AND HENCE ABSENCE OF JURISDICTION OF THE AO TO INITIATE PROCEEDINGS UNDER S. 147/148.IMPUGNED NOTI CE QUASHED. RELIANCE IS PLACED ON THE JUDGMENT OF HON'BLE HIGH COURT OF DELHI (FULL BENCH) IN THE CASE OF CIT VS KELVINATOR OF INDIA LTD (2002) 256 ITR 1 IN WHICH IT WAS HELD REASON TO BEL IEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT IS ONE OF THE CONDITIONS PRECEDENT FOR INVOKING THE JURISDICT ION OF THE AO TO REOPEN THE ASSESSMENT UNDER S. 147.AO DOES NO T HAVE ANY JURISDICTION TO REVIEW HIS OWN ORDER. WHAT CANN OT BE DONE DIRECTLY CANNOT BE DONE INDIRECTLY. THUS, HE CANNOT INITIATE PROCEEDINGS FOR REASSESSMENT ON THE BASIS OF MERE C HANGE OF OPINION. CIRCULAR NO. 549, DT.31ST OCT., 1989, WHIC H IS ADMITTEDLY BINDING ON THE REVENUE, HAS CLARIFIED TH AT THE OMISSION OF THE EXPRESSION 'REASON TO BELIEVE' FROM THE AMENDED S. 147 WOULD NOT GIVE ARBITRARY POWERS TO T HE AO TO REOPEN PAST ASSESSMENT ON MERE CHANGE OF OPINION. I F IT IS HELD THAT AO CAN EXERCISE HIS JURISDICTION UNDER S. 147 UPON MERE CHANGE OF OPINION THE SAME MAY BE HELD TO BE UNCONSTITUTIONAL AND THAT INTERPRETATION HAS TO BE AVOIDED. LACK OF ANALYSIS OF THE MATERIALS ON RECORD BY ITSE LF CANNOT JUSTIFY PROCEEDINGS UNDER S. 147. RELIANCE IS ALSO PLACED ON THE JUDGMENT OF HIGH COURT OF DELHI IN THE CASE OF MOSER BEAR INDIA PVT. LTD VS DCIT (2012)82CCH396 IN WHICH IT WAS CONCLUDED THAT THE SECTION 147 DOES NOT ALLOW REOPENING OF A COMPLETED ASSESSM ENT MERELY ON CHANGE ON OPINION. THE ASSESSING OFFICER DOES NOT HAVE THE POWER TO REVIEW THE PREVIOUS ASSESSMENT OR DER. THE ASSESSING OFFICER HAS TO HAVE 'REASON TO BELIEVE' T HAT THE INCOME HAS ESCAPED ASSESSMENT. IN THE PRESENT CASE THE ITA NO.136/ASR/2015 (A.Y.2007-08) ITO VS. SH. SUHAIL AHMAD BHAT, SRINAGAR 5 ASSESSING OFFICER PASSED THE ASSESSMENT ORDER KNOWI NG THAT THERE WERE THREE UNITS ELIGIBLE FOR DEDUCTION U/S 1 0A/10B AND THAT ONLY 2 OF THE 3 UNITS HAD CLAIMED DEDUCTION; T HE THIRD UNIT CLAIMED NIL DEDUCTION. THE ASSESSING OFFICER P ASSED THE ASSESSMENT ORDER AND SPECIFICALLY ALTERED THE DEDUC TION CLAIMED U/S 10A/10B. AT THE TIME OF THE ORIGINAL AS SESSMENT THE ASSESSING OFFICER DID NOT THINK OF SETTING OFF THE LOSS OF THE THIRD UNIT WITH THE OTHER TWO UNITS AND THEREFORE T HE REASSESSMENT ON A MERE CHANGE OF OPINION IS INVALID . I HAVE GONE THROUGH THE SUBMISSION OF T HE APPELLANT AND ASSESSMENT ORDER. IT IS OBSERVED THAT TO CONSTI TUTE A VALID REASON TO BELIEVE THERE MUST BE SOME NEW MATERIAL C OMING INTO LIGHT WITH THE ASSESSING OFFICER AND MERELY A CHANGE OF OPINION CANNOT CONSTITUTE A REASON TO BELIEVE. IF T HE ASSESSEE HAS DISCLOSED BASIC AND ALL THE FACTS TRUTHFULLY DU RING THE COURSE OF ASSESSMENT AND THE ASSESSMENT IS COMPLETE D, LATER ON, NOTICE U/S 148 CAN NOT BE ISSUED MERELY BECAUSE THERE IS ANOTHER INFERENCE POSSIBLE FROM THE SAME DOCUMENTS AND THE FACTS PLACED BEFORE THE ASSESSING OFFICER DURING TH E COURSE OF ASSESSMENT. IT WILL AMOUNT TO CHANGE OF OPINION. TH ERE MUST BE SOME NEW MATERIAL OF FACTS COMING INTO LIGHT FOR ACTION U/S 147/148. BUT IF THE ASSESSEE HAS SUPPRESSED SOME RE LEVANT FACTS WHICH LEADS TO CONCEALMENT OF INCOME AND LATE R THOSE FACTS COME BEFORE THE ASSESSING OFFICER THE NOTICE U/S 147/48 CAN BE ISSUED VALIDLY. IN THE PRESENT CASE, THERE I S NOTHING ON RECORD TO SHOW THAT THE APPELLANT HAD CONCEALED ANY FACTS DURING THE EARLIER ASSESSMENT OR ANY FRESH MATERIAL , FACTS OR INFORMATION HAS BEEN RECEIVED BY THE AO AFTER THE C OMPLETION OF THE EARLIER ASSESSMENT. ON THE PERUSAL OF THE FA CTS OF THE CASE, THE REASONS RECORDED FOR REOPENING OF ASSESSM ENT U/S 148 OF THE ACT IS NOTHING BUT A CHANGE OF OPINION W HICH IS AGAINST THE INTENTION OF THE LAW AS INTERPRETED BY VARIOUS COURTS AS DISCUSSED ABOVE. THE LAW DOES NOT PERMIT TO DISTURB THE OTHERWISE CONCLUDED ASSESSMENTS UNLESS FRESH FA CTS, MATERIALS AND INFORMATION ARE RECEIVED WHICH GIVES A BELIEF THAT THE INCOME HAS ESCAPED ASSESSMENT. IF THE AO H AD ANY DOUBT ABOUT THE JUDGMENT OF HIS PREDECESSOR, HE COU LD HAVE REFERRED THE CASE U/S 263 OF THE ACT BEFORE THE COM MISSIONER OF INCOME TAX WHO HAS POWER TO DECIDE WHETHER THE ASSESSMENT MADE EARLIER WAS PREJUDICIAL TO THE INTE RESTS OF THE REVENUE OR NOT AND COULD DIRECT FRESH ASSESSMENT, I F FOUND NECESSARY. HOWEVER, THERE IS NO SUCH POWER WITH THE AO TO REVIEW THE ASSESSMENT MADE BY HIS PREDECESSOR EVEN AFTER TAKING APPROVAL OF JOINT COMMISSIONER AND MAKE FRES H ASSESSMENT ON ITS OWN IF HE FEELS THAT THERE IS ANO THER INFERENCE POSSIBLE FROM THE SAME DOCUMENTS. THEREFORE, IN MY OPINION, THE REOPENING OF ASSESSMENT U/S 148 OF THE ACT BASED ON CHANGE OF OPINION IS INVALID AND ILLEG AL AND ANY PROCEEDINGS CARRIED OUT THEREON IS ALSO ILLEGAL AND ITA NO.136/ASR/2015 (A.Y.2007-08) ITO VS. SH. SUHAIL AHMAD BHAT, SRINAGAR 6 VOID AB INITIO . THE GROUND OF APPEAL OF THE APPELLANT IN RELATION TO CHALLENGING THE ASSESSMENT BASED ON VAL IDITY OF REASONS RECORDED IS ALLOWED AND THE ASSESSMENT ORDE R PASSED BY THE AO IS LIABLE TO BE QUASHED . THE APPELLANT HAS ALSO CONTENDED THAT EVEN ON MERIT S OF THE CASE, THE ADDITION U/S 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS MADE BY THE AO IS NOT JUSTIFIED. THE APPELLANT HAS ARGUED THAT THERE WERE TOTAL DEPOSITS OF RS 2,4 1,32,540/- IN BOTH THE BANK ACCOUNTS MAINTAINED WITH PUNJAB NA TIONAL BANK. THE APPELLANT HAS FURNISHED THE FOLLOWING DET AILS REGARDING THESE DEPOSITS- TURNOVER DECLARED RS.94,6 7,778/- INTER BANK TRANSFERS RS.61,5 0,000/- CHEQUES RETURNED RS.3,08, 500/- ADVANCES RECEIVED FROM CUSTOMER RS.80,92,500/- BALANCE (DISCLOSED AS COMMISSION) RS.1,13,762/- THE APPELLANT HAS PRODUCED A CERTIFICATE OF BANK AU THORITIES IN RESPECT OF INTER BANK TRANSFERS AND DETAILS OF CHEQ UE RETURNED AND A LIST OF CUSTOMERS WHO HAVE PAID ADVANCES ALON G WITH THEIR POSTAL ADDRESS AS ADDITIONAL EVIDENCE UNDER R ULE 46A. ALL THESE DOCUMENTS WERE FORWARDED TO THE AO FOR VERIFI CATION AND HIS COMMENTS THERE ON. THE AO DID NOT MADE ANY EFFO RT TO MAKE VERIFICATIONS FROM THE CUSTOMERS IN RESPECT OF ADVANCES AND MADE COMMENTS THAT THESE DOCUMENTS WERE NOT PRO DUCED AT THE TIME OF ASSESSMENT. THERE IS NO POWER WITH T HE AO TO REFUTE THE DECISION TAKEN BY ME UNDER RULE 46A TO A DMIT ADDITIONAL EVIDENCE IN THE INTEREST OF JUSTICE. IT WAS THE DUTY OF THE AO TO VERIFY THE DOCUMENTS FORWARDED TO HIM IN REMAND PROCEEDINGS WHICH HE FAILED TO DO. IT IS ALSO OBSER VED THAT IT IS THE NORMAL PRACTICE OF THE APPELLANT TO RECEIVE ADV ANCES FROM THE CUSTOMERS AS THE SAME ARE REFLECTED IN THE AUDI TED BALANCE SHEETS OF PRECEDING AS WELL AS SUCCEEDING A SSESSMENT YEARS AND THE FINANCIAL STATEMENTS OF THE YEAR UNDE R CONSIDERATION REFLECTING THE ADVANCES FROM CUSTOMER S ARE DULY AUDITED BY A CHARTERED ACCOUNTANT. AS THE APPELLANT HAS FULLY EXPLAINED THE DETAILS OF DEPOSITS IN BANK ACC OUNTS AND THE AO HAS NOT PROVIDED ANY THING CONTRARY TO T HE EXPLANATIONS OF THE APPELLANT IN HIS REMAND REPORT EXCEPT THAT SOME OF THESE DETAILS WERE NOT AVAILABLE AT TH E TIME OF ASSESSMENT. THEREFORE, IN MY OPINION, THE ADDITI ON MADE BY THE AO IS NOT JUSTIFIED AND ACCORDINGLY DEL ETED. THE APPELLANT SUCCEEDS BOTH ON LEGAL GROUND AS WELL AS ON MERIT. IN RESULT, APPEAL IS ALLOWED. ITA NO.136/ASR/2015 (A.Y.2007-08) ITO VS. SH. SUHAIL AHMAD BHAT, SRINAGAR 7 4. THE REVENUE DEPARTMENT, ON BEING AGGRIEVED AGAINST T HE IMPUGNED ORDER, PREFERRED THE INSTANT APPEAL. 5. HAVING HEARD THE PARTIES AT LENGTH AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. FROM THE IMPUGNED ORDER, IT REF LECTS THAT THE ASSESSEE CONTESTED AND CLAIMED THAT THE ADDITION OF RS.99,4 3,535/- HAS BEEN MADE AS INCOME OF THE APPELLANT/ASSESSEE WITHOUT CONSIDERING THE EARLIER ASSESSMENT ORDERS AND WITHOUT ANY FRESH INFORMATION OR MATERIAL IN HANDS, WHICH AMOUNTS TO MER E CHANGE OF OPINION AND THEREFORE THE RE-OPENING OF ASSESSMENT U/S 1 48 OF THE ACT IS NOT PERMISSIBLE ON ACCOUNT OF CHANGE IN OPINION. T HE ASSESSEE ALSO RELIED UPON THE JUDGMENTS INCLUDING OF THE APEX COURT IN THE CASE OF CIT VS. KELVINATOR OF INDIA PVT. LTD. [2010] 320 ITR 561 (SC). THE LD. CIT(A) THOROUGHLY CONSIDERED TH E CONTENTIONS OF THE ASSESSEE AND HELD THAT TO CONSTITUTE A VALID REASO N TO BELIEVE, SOME NEW MATERIAL MUST COME INTO LIGHT WITH T HE ASSESSING OFFICER AND MERELY A CHANGE OF OPINION CANNOT CONSTITUT E REASON TO BELIEVE . FURTHER IF THE ASSESSEE HAS DISCLOSED BASIC AND ALL THE FACTS TRUTHFULLY DURING THE COURSE OF ASSESSMENT AND THE ASSESSMEN T IS COMPLETED, THEN LATERON NOTICE U/S 148 CANNOT BE ISSUED M ERELY BECAUSE THERE IS ANOTHER INFERENCE POSSIBLE FROM THE SAME DOCUMENTS AND THE FACTS PLACED BEFORE THE ASSESSING OFFICER D URING THE COURSE OF ORIGINAL ASSESSMENT, IT WILL AMOUNT TO CHA NGE OF OPINION. THE LD. CIT(A) FURTHER OBSERVED THAT THERE IS NOTHING ON RECORD TO SHOW THAT THE ASSESSEE HAS CONCEALED ANY FACTS DURIN G THE EARLIER ASSESSMENT OR ANY FRESH MATERIAL, FACTS OR IN FORMATION HAS BEEN RECEIVED BY THE AO AFTER THE COMPLETION OF EA RLIER ASSESSMENT. ON THE PERUSAL OF THE FACTS OF THE CASE, THE REA SONS RECORDED FOR RE-OPENING OF ASSESSMENT U/S 148 OF THE ACT I S NOTHING BUT A CHANGE OF OPINION WHICH IS AGAINST THE INTENTION OF THE LAW AS ITA NO.136/ASR/2015 (A.Y.2007-08) ITO VS. SH. SUHAIL AHMAD BHAT, SRINAGAR 8 INCORPORATED BY VARIOUS COURTS. THE LAW DOES NOT PERMIT TO DISTURB THE OTHERWISE CONCLUDED ASSESSMENT UNLESS FROM THE FACTS, MATERIALS AND INFORMATION ARE RECEIVED WHICH GIVES A BE LIEF THAT THE INCOME HAS ESCAPED ASSESSMENT. FINALLY, THE LD. CIT(A) CON CLUDED THAT THE REOPENING IN THE INSTANT CASE IS BASED UPON THE CHANGE OF OPINION AND THEREFORE, IS INVALID AND ILLEGAL AND AN Y PROCEEDINGS CARRIED OUT THEREIN IS ALSO ILLEGAL AND VOID-AB-INITIO. 5.1 WE HAVE INDEPENDENTLY APPLIED OUR MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS ORDERS PASSED BY THE AUTHORITIES BELOW. THE LD. DR RELIED UPON THE ORDER PASSED IN SEVAK RAM VS. INCOME TAX OFFICER, 263 CTR 463 [2010] BY THE JURISDICTIONAL HIGH COURT AND SUBMITTED THAT REASONS CAN BE GIVEN ON THE BASIS OF PARTICULARS OF RETURN WITHOUT ANY NEW M ATERIAL AND FURTHER SUBMITTED THAT IF SATISFACTION IS ARRIVED AT ON THE BASIS OF ANY RELEVANT MATERIAL, SUCH SATISFACTION CAN BE ASSAILED. B EFORE US, IT IS NOT THE CASE OF THE REVENUE THAT THE PREVIOUS ASSESSI NG OFFICER HAS NOT CONSIDERED THE RELEVANT DOCUMENTS AND/OR CLAIMS OF THE ASSESSEE WHILE PASSING AN ASSESSMENT ORDER U/S 143(3) OF THE ACT. THE LAW QUA REASON TO BELIEVE, IS WELL SETTLED BY THE APEX COURT IN THE CASE OF CIT VS. KELVINATOR OF INDIA PVT. LTD. (SUP RA) WHEREIN THE APEX COURT LAID DOWN THE DICTUM OF THE DECISION. RELIANCE IS PLACED ON THE JUDGMENT OF HON'BLE HIGH COURT OF DELHI (FULL BENCH) IN THE CASE OF CIT VS KELVINA TOR OF INDIA LTD (2002) 256 ITR 1 IN WHICH IT WAS HELD REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSES SMENT IS ONE OF THE CONDITIONS PRECEDENT FOR INVOKING THE JURISDICTION OF THE AO TO REOPEN THE ASSESSMENT UND ER S. 147.AO DOES NOT HAVE ANY JURISDICTION TO REVIEW HIS OWN ORDER. WHAT CANNOT BE DONE DIRECTLY CANNOT BE DONE INDIRECTLY. THUS, HE CANNOT INITIATE PROCEEDINGS FO R REASSESSMENT ON THE BASIS OF MERE CHANGE OF OPINION . CIRCULAR NO. 549, DT.31ST OCT., 1989, WHICH IS ADMI TTEDLY ITA NO.136/ASR/2015 (A.Y.2007-08) ITO VS. SH. SUHAIL AHMAD BHAT, SRINAGAR 9 BINDING ON THE REVENUE, HAS CLARIFIED THAT THE OMIS SION OF THE EXPRESSION 'REASON TO BELIEVE' FROM THE AMENDED S. 147 WOULD NOT GIVE ARBITRARY POWERS TO THE AO TO RE OPEN PAST ASSESSMENT ON MERE CHANGE OF OPINION. IF IT IS HELD THAT AO CAN EXERCISE HIS JURISDICTION UNDER S. 147 UPON MERE CHANGE OF OPINION THE SAME MAY BE HELD TO BE UNCONSTITUTIONAL AND THAT INTERPRETATION HAS TO BE AVOIDED. LACK OF ANALYSIS OF THE MATERIALS ON RECOR D BY ITSELF CANNOT JUSTIFY PROCEEDINGS UNDER S. 147. HENCE, WE ARE OF THE CONSIDERED VIEW THAT IN THE INSTAN T CASE THERE WAS NO RELEVANT AND SUFFICIENT MATERIAL TO MAKE SATISFACTION FOR INITIATION THE PROCESS OF RE-ASSESSMENT U/S 147 OF THE ACT HENCE, WE DO NOT FIND ANY INFIRMITY, IMPROPRIETY OR ILLEGA LITY IN THE ACTION OF THE LD. CIT(A) IN NOT SUSTAINING THE ACTION U/S 147 OF THE ACT BY THE ASSESSING OFFICER. 5.2 NOW COMING TO THE MERIT OF THE CASE. BEFORE THE LD. C IT(A), IT WAS CONTENDED BY THE ASSESSEE THAT THE ADDITION U/S 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IS ALSO NOT JUSTIFI ED. IT WAS FURTHER CONTENDED BEFORE THE LD. CIT(A) THAT THERE W ERE TOTAL DEPOSITS OF RS.2,41,32,540/- IN THE BANK ACCOUNTS MAINTAI NED WITH PUNJAB NATIONAL BANK BY THE ASSESSEE AND THE ASSESSEE HAS NO T ONLY FURNISHED THE DETAILS QUA DEPOSITS BUT ALSO PRODUCE D CERTIFICATE OF BANK AUTHORITIES QUA BANK TRANSFERS AND DETAILS OF CH EQUE RETURNED AND A LIST OF CUSTOMERS WHO HAVE PAID ADVANCES ALONG WITH THEIR POSTAL ADDRESS AS ADDITIONAL EVIDENCE BEFORE THE L D. CIT(A) UNDER RULE-46A OF THE INCOME TAX RULE, 1962. THE LD . CIT(A) SOUGHT REMAND REPORT FROM THE ASSESSING OFFICER BY FORWAR DING ALL THE DOCUMENTS SUBMITTED BY THE ASSESSEE FOR VERIFICATION AN D HIS COMMENTS THEREON. THE AO DID NOT MADE ANY EFFORT TO M AKE VERIFICATIONS FROM THE CUSTOMERS IN RESPECT OF ADVA NCES AND MADE COMMENTS THAT THESE DOCUMENTS WERE NOT PRODUCE D AT ITA NO.136/ASR/2015 (A.Y.2007-08) ITO VS. SH. SUHAIL AHMAD BHAT, SRINAGAR 10 THE TIME OF ASSESSMENT. THEREFORE, IT WAS OBSERVED BY THE LD. CIT(A) THAT THE ASSESSING OFFICER IS NOT EMPOWERED TO RE FUTE THE DECISION TAKEN BY THE COMMISSIONER UNDER RULE-46A OF TH E RULES TO ADMIT ADDITIONAL EVIDENCE IN THE INTEREST OF JUSTICE. F URTHER OBSERVED THAT IT WAS THE DUTY OF THE AO TO VERIFY THE DOCUMENTS FORWARDED TO HIM IN EARLIER PROCEEDINGS WHICH HE FAIL ED TO DO SO. THE LD. CIT(A) ALSO OBSERVED THAT IT IS THE NORMAL P RACTICE OF THE APPELLANT TO RECEIVE ADVANCES FROM THE CUSTOMERS AS THE SAME ARE REFLECTED IN THE AUDITED BALANCE SHEETS OF PREC EDING AS WELL AS SUCCEEDING ASSESSMENT YEARS AND THE FINANCI AL STATEMENTS OF THE YEAR UNDER CONSIDERATION REFLECTI NG THE ADVANCES FROM CUSTOMERS ARE DULY AUDITED BY A CHART ERED ACCOUNTANT. IT WAS FURTHER OBSERVED BY THE LD. CIT( A) THAT AS THE APPELLANT HAS FULLY EXPLAINED THE DETAILS OF DE POSITS IN BANK ACCOUNTS AND THE AO HAS NOT PROVIDED ANY THING CONTRARY TO THE EXPLANATIONS OF THE APPELLANT IN HIS REMAND REPORT EXCEPT THAT SOME OF THESE DETAILS WERE NOT AVAILABL E AT THE TIME OF ASSESSMENT. FINALLY, THE LD. CIT(A) HELD TH E ADDITION AS UNJUSTIFIED AND CONSEQUENTLY DELETED THE SAME. THE LD. DR ARGUED THAT THE LD. CIT(A) ALSO NOT JUSTIFIED IN HOLDING TH AT ASSESSING OFFICER HAS NO POWER TO REFUTE THE DECISION TAKEN UNDER RULE-46A OF THE I.T. RULES AND FAILED TO VERIFY THE DOCUMENTS (LIST OF PARTIES WITH ADDRESS) IN RESPECT OF ADVANCES AND THAT SAME ARE REFLECTED IN AUDITED BALANCE SHEET. FURTHER MOREOVER, THERE IS NO J USTIFICATION TO DELETE THE ADDITION ON ACCOUNT OF ADVANCES AGAINST SALE OF RS.80,92,500 (THAT TO NOT VERIFIED) WITH SALES AGAINST DECLARED SALE AT RS.9,46,778/- WHICH CANNOT BE AT ALL REASONABLE. ITA NO.136/ASR/2015 (A.Y.2007-08) ITO VS. SH. SUHAIL AHMAD BHAT, SRINAGAR 11 5.3 FROM THE IMPUGNED ORDER IT CLEARLY REFLECTS THAT THE PROPER OPPORTUNITIES HAVE BEEN OFFERED TO THE ASSESSING OFFICER TO FILE THE REMAND REPORT BY VERIFYING THE DOCUMENTS AND CLAIM OF THE ASSESSEE, HOWEVER, HE DID NOT MAKE ANY EFFORT TO DO SO A ND ULTIMATELY THE LD. CIT(A) NOT ONLY CONSIDERED THE NOR MAL PRACTICE OF THE ASSESSEE QUA RECEIVING OF THE ADVANCES FROM THE CUST OMERS AS WELL AS AUDITED BALANCE SHEETS OF THE PRECEDING AND S UCCEEDING ASSESSMENT YEARS BUT ALSO CONSIDERED THE FINANCIAL STATEMEN TS OF THE YEAR UNDER CONSIDERATION REFLECTED THE ADVANCES FROM CUSTOMERS WHICH WERE DULY AUDITED BY THE CHARTERED ACCO UNTANT AND OPINED THAT THE APPELLANT/ASSESSEE HAS FULLY EXPLAIN ED THE DETAILS OF THE DEPOSITS IN THE BANK ACCOUNT AND THEREFO RE, DELETED THE ADDITIONS, WHICH ACCORDING OUR MIND DOES NOT SUFFE RS FROM ANY PERVERSITY, ILLEGALITY AND IMPROPRIETY. HENCE, THE ACTI ON OF THE LD. CIT(A) IN NON-SUSTAINING OF THE ACTION OF THE ASSESSEE, ON MERIT ALSO DOES NOT REQUIRE ANY INFERENCE AND CONSEQUENTLY STANDS AFFIRMED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE DEPA RTMENT STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.04.2019. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED: 23.04.2019 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. SUHAIL AHMAD BHAT, PROP. SHIFA TRADERS, RANGP ARISTAN, RAINAWARI, SRINAGAR (J&K). (2) THE ITO, WARD-3(3), SRINAGAR (3) THE CIT(A), JAMMU (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER