Calcutta Cycle Co., Hooghly V. DCIT-Circle-, Midnapur, Paschim Medinipur

ITA 2302/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99651 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 26-08-2013
• Court: TRIBUNAL
• Assessee Lawyers: SHRI SOMNATH GHOSH
• Keywords: Tangible material; Speculation loss; Difference of opinion; Assessment record; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 194C; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC KOLKATA [BEFORE HON BLE S HRI MAHAVIR SINGH, JM ] ITA NO . 2302/KOL/2013 ASSESSMENT YEAR : 2006 - 07 ( A PPELLANT ) (RESPONDENT) CALCUTTA CYCLE CO. - VERSUS - D.C.I.T., CIRCLE - 2, HOOGHLY MIDNAPORE. (PAN: AADFP 9395 G) FOR THE APPELLANT: SHRI SHRI SOMNATH GHOSH,ADVOCATE FOR THE RESPONDENT: SHRI SANJAY MUKHERJEE, JCIT DATE OF HEARING : 22 .07.2015 . DATE OF PRONOUNCEMENT : 07.08.2015. ORDER THIS APPEAL OF ASSESSEE ARISE S FROM THE ORDER OF LD. CIT(A) - XX X VI , KOLKATA IN APPEAL NO . 320 /CIT(A) - XX X VI / KOL/CIR. - 2,MID./ 2011 - 12 DATED 31.07 . 2013 . ASSESSMENT WAS FRAMED BY D.C.I.T., CIRCLE - 2, MIDNAPORE U/S 147/ 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT ) F OR A.YR . 2006 - 07 VIDE ITS ORDER DATED 20 .12.2011 . 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) IS RIGHT IN CONFIRMING THE ASSUMPTION OF JURISDICTION U/S 147 OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND ACC ORDINGLY RIGHT IN CONFIRMING THE DISALLOWANCE OF RS.4,76,218/ - TOWARD TRANSPORTATION CHARGES MADE BY THE LD. AO IN THE RE - ASSESSMENT PROCEEDINGS. 3. THE BRIEF FACTS OF THE CASE ARE THAT ORIGINAL ASSESSMENT FOR A.Y.2006 - 07 WAS COMPLETED U/S 143(3) OF THE ACT BY THE LD. AO AND THE SAID ASSESSMENT WAS SOUGHT TO BE REOPENED BY ISSUANCE OF NOTICE U/S 148 OF THE ACT ON 12.05.2010. THE ASSESSEE HAD CLAIMED TRANSPORTATION CHARGES OF RS.7,80,475/ - AS DEDUCTION IN THE RETURN FOR A.Y.2006 - 07 AND OUT OF THIS, IT WAS FOUND THAT A SUM OF RS.4,76,218/ - REPRESENTING ITA NO. 2302/KOL/2013 CALCUTTA CYCLE CO . A.YR. 2006 - 07 2 PAYMENTS WERE MADE BY THE ASSESSEE TO FOUR PARTIES IN EXCESS OF RS.50,000/ - PER ANNUM WITHOUT DEDUCTING OF TAX AT SOURCE. AO ACCORDINGLY INVOKED THE PROVISION OF SECTION 40(A)(IA) OF THE ACT R.W.S. 194C O F THE ACT AND DISALLOWED A SUM OF RS.4,76,218/ - . AGGRIEVED BY THIS ORDER, THE ASSESSEE CHALLENGED THIS ISSUE ON JURISDICTION AS WELL AS ON MERITS BEFORE THE LD. CIT(A). THE LD. CIT(A) UPHELD THE ASSUMPTION OF JURISDICTION OF THE AO ON THE GROUND THAT T HOUGH SPECIFIC DETAILS WERE CALLED FOR BY THE LD. AO TOWARDS TRANSPORTATION CHARGES IN THE ORIGINAL SCRUTINY ASSESSMENT PROCEEDINGS AND THE SAME WERE DULY REPLIED TO BY THE ASSESSEE, NO SPECIFIC QUERY WAS PUT ACROSS BY THE AO WITH REGARD TO THE TRANSPORTAT I ON CHARGES FROM THE ANGLE OF SECTION 40(A)(IA) OF THE ACT. ACCORDINGLY, HE CONCLUDED THAT THE LD. AO HAD NOT FORMED ANY OPINION. HENCE, THE GROUND THAT THE REOPENING WAS BASED ON CHANGE OF OPINION RAISED BY THE ASSESSEE, WAS DISMISSED. THE LD. CIT(A) ALS O UPHELD THE ACTION OF THE LD. AO IN INVOKING THE PROVISION OF SECTION 40(A)(IA) OF THE ACT AND ACCORDINGLY CONFIRMED THE ADDITION. AGGRIEVED, TH E ASSESSEE CHALLENGED THE ISSUE BEFORE THIS TRIBUNAL. 4. GROUND NOS. 1 TO 3 ARE LEGAL IN NATURE ON ASSUMPTION OF JURISDICTION U/S 147 OF THE ACT AND GROUND NOS 4 AND 5 ARE ON MERITS OF THE ISSUE. 5. SHRI SOMNATH GHOSH, ADVOCATE APPEARED ON BEHALF OF THE ASSESSEE AND SHRI SANJAY MUKHERJEE, JCIT APPEARED ON BEHALF OF THE REVENUE. 6. SHRI SOMNATH GHOSH, THE LD. AR PLACED ON RECORD A WRITTEN SUBMISSION TOGETHER WITH DETAILED PAPER BOOK CONTAINING 133 PAGES EXPLAINING TH E COMPLETE FACTUAL MATRIX OF THIS APPEAL. HE ARGUED THAT THE LD. AO HAD MADE THOROUGH VERIFICATION REGARDING THE TRANSPORTATION CHARGES IN THE ORIG INAL SCRUTINY ASSESSMENT PROCEEDINGS ITSELF. FOR THIS PURPOSE HE TOOK US TO THE RELEVANT PAGE OF THE PAPER BOOK WHICH CONTAINS THE ITA NO. 2302/KOL/2013 CALCUTTA CYCLE CO . A.YR. 2006 - 07 3 QUERY RAISED BY THE LD. AO IN THE ORDER SHEET ENTRY AND REPLIES FILED THEREON BY THE ASSESSEE WHICH FACT IS DULY MENTIONED B Y THE AO IN HIS ORDER SHEET. HE STATED THAT BASED ON THESE REPLIES, THE LD. AO WAS FULLY CONVINCED ABOUT THE FULL AND TRUE DISCLOSURE MADE BY THE ASSESSEE WITH REGARD TO THE ISSUE ON TRANSPORTATION CHARGES AND ACCORDINGLY HE SOUGHT NOT TO MAKE ANY ADDITION . HE ARGUED THAT THERE IS NO TANGIBLE MATERIAL AVAILABLE WITH THE AO WHICH CONSTITUTED NEW INFORMATION AND ACCORDINGLY MENTIONED THAT THE LD. AO HAD ONLY SUBJECTED HIMSELF TO THE REVIEW OF THE EXISTING MATERIALS ON RECORD AND HAD AMOUNTED TO CHANGE OF OPIN ION ALREADY FRAMED IN THE ORIGINAL SCRUTINY ASSESSMENT PROCEEDINGS AND IN SUPPORT OF THIS, HE RELIED ON THE VARIOUS JUDICIAL DECISIONS. HE ALSO INFORMED THAT THE REOPENING WAS DONE WITHIN FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. 7. IN RESP ONSE TO THIS, THE LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 8. I HAVE HEARD THE RIVAL SUBMISSIONS. IT IS SEEN THAT IN T HE ORIGINAL SCRUTINY ASSESSMENT , THE QUESTION REGARDING TRANSPORTATION CHARGES WERE RAISED BY THE LD. AO. THE SAM E WERE DULY REPLIED BY THE ASSESSEE. THESE FACTS ARE NOT DISPUTED BY THE DEPARTMENT AND ARE ALSO MENTIONED IN PAGES 11 AND 12 OF THE LD.CIT( A) S ORDER WHICH ARE EXTRACTS OF ORDER SHEET ENTRIES OF THE ASSESSMENT RECORDS. THE LD. AO BASED ON THE QUERY RAISED REGARDING TRANSPORTATION CHARGES AND REPLIES FILED THEREON BY THE ASSESSEE RESORTED NOT TO MAKE ANY ADDITION IN THIS REGARD IN THE ORIGINAL ASSESSMENT U/S 143(3) OF THE ACT. THIS INDICATES FORMATION OF AN OPINION AND APPLICATION OF MIND BY THE LD.AO. THER E IS NO DOUBT OR DISPUTE AS TO THE FACT IN THE INSTANT CASE THAT THERE IS NO TANGIBLE MATERIAL AVAILABLE WITH THE LD. AO TO JUSTIFY THE IMPUGNED ACTION AND RESTORING TO REOPEN THE ASSESSMENT AS IT WOULD TANTAMOUNT TO A CASE OF MERE CHANGE OF OPINION. A GAI N WHERE THERE IS NO MATERIAL OR INFORMATION WHICH CAME TO THE KNOWLEDGE OF THE AO TO RE - INITIATE THE PROCEEDINGS AND SINCE HE HAD DERIVED THE FACTS AND MATERIALS PLACED BY THE ASSESSEE HIMSELF DURING THE ORIGINAL ASSESSMENT PROCEEDINGS, THAT HAD ITA NO. 2302/KOL/2013 CALCUTTA CYCLE CO . A.YR. 2006 - 07 4 NOT CONS TITUTED NEW INFORMATION. SINCE IN THIS CASE, A REGULAR ASSESSMENT WAS MADE U/S 143(3) OF THE ACT, PRESUMPTION CAN BE DRAWN THAT SUCH AN ORDER HAS BEEN PASSED ON APPLICATION OF MIND AND THE SUBSEQUENT ACTION OF THE LD. AO IS NOTHING BUT A CHANGE OF OPINION . APPROACHING THE VERIFICATION OF THE TRANSPORTATION CHARGES FROM AN ANGLE OF SECTION 40(A)(IA) OF THE ACT IS ONLY ONE OF THE ANGLES AVAILABLE TO THE LD. AO. WHEN THE ENTIRE DETAILS OF THE TRANSPORTATION CHARGES ARE CALLED FOR BY THE AO AND THE SAME WERE DULY FURNISHED BY THE ASSESSEE, THE ASSESSEE HAD DISCHARGED ALL THE OBLIGATIONS IN THE ACT. MOREOVER, IN THE INSTANT CASE, THE LD. AO HAD STATED AT PAGE - 3 PARA - 1 OF THE RE - ASSESSMENT ORDER THAT IN RESPONSE TO QUESTION NO.27(A) OF FORM NO.3CD THE TAX AUDITO R ALSO HAD REPORTED THAT THE TAX HAS NOT BEEN DEDUCTED ON THE SAID TRANSPORTATION CHARGES TO THE TUNE OF RS.4,76,218/ - . HOWEVER, ON PERUSAL OF THE TAX AUDIT REPORT IN FORM NO.3CD AT PAGE 110 OF THE PAPER BOOK FILED BY THE LD. AR, THE TAX AUDITOR HAD ONLY S TATED N/A IN RESPONSE TO QUESTION NO.27(A). HENCE THE FORMATION OF BELIEF BY THE AO ON THE BASIS OF INCORRECT FACTS IS TOTALLY ILLEGAL AND ARBITRARY. THE AUTHORITY TO REOPEN AN ASSESSMENT U/S 147 OF THE ACT IS, EVEN WITHIN A PERIOD OF FOUR Y EARS, COND ITIONED BY THE REQUIREMENT THAT THERE MUST BE A REASON TO BELIEVE THAT THE INCOME HAS ESCAPED ASSESSMENT. THE AO IS INCAPACITATED, IN THE GUISE OF INVENTING A REASON TO BELIEVE FOR EXERCISING THE JURISDICTION TO REVIEW AN EARLIER INFORMATION. HENCE, TH E CONDITION PRECEDENT FOR EXERCISING POWER FOR INITIATING PROCEEDINGS U/S 147 OF THE ACT IS TO MAKE A REFERENCE TO TANGIBLE MATERIAL IN THE REASONS RECORDED U/S 148(2) OF THE ACT. IN THE INSTANT CASE, THE REQUIREMENT OF LAW WAS NOT MET AS NO TANGIBLE MAT ERIAL WAS ADDUCED ON RECORD TO JUSTIFY HIS ALLEGED BELIEF FOR INITIATION OF RE - ASSESSMENT PROCEEDINGS. AFTER THE INSERTION OF EXPLANATION 2 TO SECTION 147, THE POSITION REMAINS THAT SO FAR AS THE PRIMARY FACTS ARE CONCERNED, IT IS ASSESSEE S DUTY TO DISCL OSE ALL OF THEM , INCLUDING PARTICULAR ENTRIES IN THE ACCOUNTS BOOKS, PARTICULAR PORTION OF DOCUMENTS, DOCUMENTS AND OTHER EVIDENCES WHICH COULD HAVE BEEN DISCOVERED BY THE ASSESSING AUTHORITY FROM ITA NO. 2302/KOL/2013 CALCUTTA CYCLE CO . A.YR. 2006 - 07 5 THE DOCUMENTS AND OTHER EVIDENCES DISCLOSED. THE DUTY HOWEV ER DID NOT EXTEND BEYOND THE FULL AND TRUTHFUL DISCLOSURE OF ALL PRIMARY FACTS. ONCE ALL THE PRIMARY FACTS ARE BEFORE THE ASSESSING AUTHORI TY, IT IS FOR HIM TO DECIDE WHAT INFERENCE S OF FACT CAN BE REASONABLY DRAWN AND WHAT LEGAL INFERENCE S HAVE ULTIMATE LY TO BE DRAWN. IT IS NOT FOR SOMEBODY ELSE FAR LESS THE ASSESSEE TO TELL THE AS SESSING AUTHORITY WHEN INFERENCES, WHETHER OF FACT OR OF LAW , SHOULD BE DRAWN. 8.1. IT IS PERTINE NT TO GO INTO THE JUDICIAL D ECISION ON THE IMPUGNED SUBJECT: - (A) C IT VS K ELVINATOR INDIA LIMITED (2010) 31 0 ITR 561 (SC) (CONFIRMING CIT VS KELVINATOR OF INDIA (2002) 256 ITR 1 (DELHI)(FB). J.KAPADIA HELD THAT THE CONCEPT OF CHANGE OF OPINION MUST HAVE TREATED AS AN INBUILT TEST TO CHECK THE ABUSE OF POWER BY AO AND THAT THE REASONS MUST HAVE A LIVE LINK WITH THE FORMATION OF BELIEF. IMPORTANT EXTRACTS OF THE DECISION IS REPRODUCED HEREIN BELOW : - HOWEVER, ONE NEEDS TO GIVE SCHEMATIC INTERPRETATION TO THE WORDS REASON TO BELIEVE , FAILING WHICH 147 WOULD GIVE ARBITRARY P OWERS TO THE AO TO REOPEN THE ASSESSMENT ON THE BASIS OF MERE CHANGE OF OPINION , WHICH CANNOT BE PER SE THE REASON TO REOPEN. ONE MUST ALSO KEEP IN MIND THE CONCEPT UAL DIFFERENCE BETWEEN POWER TO REVIEW AND POWER TO RE - ASSESS. THE AO HAS NO POWER TO R EVIEW; HE HAS THE POWER TO RE - ASSESS, BUT THE RE - ASSESSMENT HAS TO BE BASED ON FULFILLMENT OF CERTAIN PRE - CONDITIONS AND IF THE CONCEPT OF CHANGE OF OPINION IS REMOVED AS CONTENDED ON BEHALF OF THE DEPARTMENT, THEN IN THE GARB OF REOPENING OF RE - ASSESS MENT , REVIEW WOULD TAKE PLACE. ONE MUST TREAT THE CONCEPT OF CHANGE OF OPINION AS AN INBUILT TEST TO CHECK ABUSE OF POWER BY THE AO. H ENCE, AFTER 01.04.1989, THE AO HAS POWER TO REOPEN , PROVIDED THERE IS TANGIBLE MATERIAL TO COME TO THE CONCLUSION THAT THERE IS ESCAPEMENT OF INCOME FROM ASSESSM ENT. UNDER THE DIRECT TAX LAWS ( AMENDMENT ) ACT 1987, THE PARTY NOT ONLY DELETED THE WORDS REASON TO BELIEVE BUT ALSO INSERTED THE WORD OPINION IN SECTION 147. HOWEVER, ON RECEIPT OF REPRESENTATIONS FROM T HE COMPANIES AGAINST OMISSION OF THE WORDS REASON TO BELIEVE , THE PARLIAMENT REINTRODUCED THE SAID EXPRESSION AND DELETED THE WORD OPINION ON THE GROUND THAT IT WOULD VESTED ARBITRARY POWERS IN THE AO THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS KELVINATOR OF INDIA LTD. (2002) 256 1 (DELHI)(FB) ( DECISION CONFIRMED BY THE HON BLE SUPREME COURT IN (2010) 320 ITR 561 (SC) H ELD THAT IF TWO INTERPRETATIONS ARE POSSIBLE, THE INTERPRETATION WHICH UPHOLDS C ONSTITU TIONALITY, IT IS TRITE, SHOULD BE FAVOURED. IN THE EVENT IT IS HELD THAT BY REASON OF SECTION 147 IF THE ITO EXERCISES HIS JURISDICTION FOR INITIATING A PROCEEDING FOR RE - ASSESSMENT ONLY UPON A MERE CHANGE OF OPINION, THE SAME MAY BE HELD TO BE UNCONSTITUTIONAL. WE ARE THEREFORE OF THE OPINION THAT SECTION 147 OF THE ACT DOES NOT POSTULATE CONFERMENT OF POWER UPON THE AO TO ITA NO. 2302/KOL/2013 CALCUTTA CYCLE CO . A.YR. 2006 - 07 6 INITIATE REASSESSMENT PROCEEDINGS UPON HIS MERE CHANGE OF OPINION. IF REASON TO BELIEVE OF THE AO, IS FOUND ED ON AN INFORMATION WHICH MIGHT HAVE BEEN RECEIVED BY THE AO AFTER THE COMPLETION OF ASSESSMENT, IT MAY BE A SOUND FOUNDATION FOR EXERCISING THE POWER U/S 147 R.W.S. 148 OF THE ACT. AN ORDER OF ASSESSMENT CAN BE PASSED EITHER IN TERMS OF SUB - SECTION (1) OF 143 OR SUB - SECTION (3) OF 143. WHEN A REGULAR ORDER O F ASSESSMENT IS PASSED IN TERMS OF SUB - SECTION (3) OF SECTION 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 CLAUSE (E) OF SE CTION 114 OF INDIAN EVIDENCE ACT, 1872 , JUDICIAL AND OFFICIAL ACTS HAVE BEEN REGULARLY PERFORMED. IF IT BE HELD THAT AN ORDER WHICH HAS BEEN PASSED PURPORTEDLY WITHOUT APPLICATION OF MIND WOULD ITSELF CONFER JURISDICTION UPON THE AO TO REOPEN THE PROCEEDI NG WITHOUT ANYTHING FURTHER, THE SAME WOULD AMOUNT TO GIVING A PREMIUM TO AN AUTHORITY EXERCISING QUASI JUDICIAL FUNCTION TO TAKE BENEFIT OF ITS OWN WRONG. (B) IN CIT, BURDWAN VS PIONEER CABLE NETWORK IN ITAT NO.151 OF 2014 DATED 29.10.2014, IN THE DECISI ON RENDERED BY THE JURISDICTIONAL CALCUTTA HIGH COURT, THE QUESTION RAISED BY THE REVENUE BEFORE THE COURT IS AS FOLLOWS : - WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE TRIBUNAL WAS JUSTIFIED IN LAW , IN DECIDING THE APPEAL HOLDING THAT I T HAS A CHANGE OF OPINION IGNORING THE FACT THAT THE AO HAD NOT, BASED ON MATERIALS AVAILING TO HIM TAKEN A VIEW AND FORM AN OPINION. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE L EARNED TRIBUNAL WAS JUSTIFIED IN PASSING THE ORDER IN F AVOUR OF THE ASSESSEE WITHOUT ACKNOWLEDGING THE FACT THAT IN CASE OF VIOLATION U/S 40(A)(IA) THE AO HAS NO SCOPE OF HIS DISCRETION AND HENCE IT IS COVERED UN DER EXPLANATION 2(C) (IV) OF SE CTION. 147. THESE TWO QUESTIONS WERE DECIDED IN FAVOUR OF THE ASS ESSEE BY THE JURISDICTIONAL HIGH COURT AND THE FACTS OF THE INSTANT CASE BEFORE ME ARE EXACTLY SIMILAR TO THE FACTS BEFORE THE HON BLE CALCUTTA HIGH COURT. (C) IN CIT VS USHA INTERNATIONAL LTD. (2012)348 ITR 485 (DELHI), IT WAS HELD THAT IT IS CATEGORICA LLY SETTLED THAT RE - ASSESSMENT PROCEEDINGS WI LL BE INVALID IN CASE AN ISSUE OR QUERY IS RAISED AND ANSWERED BY THE ASSESSEE IN ORIGINAL ASSESSMENT PROCEEDINGS AND AO DOES NOT MAKE ANY ADDITION IN ASSESSMENT ORDER WITH REGARD TO THAT QUERY. (D) IT HAS BEE N HELD IN THE CASE OF CIT VS BHANJI LAVJI (1971) 79 ITR 582 (SC), THAT WHEN THE PRIMARY FACTS NECESSARY FOR ASSESSMENT ARE FULLY AND TRULY DISCLOSED , THE ITO WILL NOT BE ENTITLED ON CHANGE OF OPINION TO COMMENCE THE PROCEEDINGS FOR RE - ASSESSMENT. SIMILA RLY IF HE HAS RAISED A WRONG LEGAL INFERENCE FROM THE FACTS DISCLOSED , HE WILL NOT, ON THAT ACCOUNT , BE COMPETENT TO COMMENCE RE - ASSESSMENT PROCEEDINGS. ITA NO. 2302/KOL/2013 CALCUTTA CYCLE CO . A.YR. 2006 - 07 7 SIMILAR VIEW WAS TAKEN BY THE ITO VS NAWAB MIR BARKAT ALI KHAN BAHADUR (1974) 97 ITR 239 (SC) WHEREIN THE HON BLE APEX COURT HELD THAT HAVING A SECOND THOUGHT ON THE SAME MATERIAL AND OMISSION TO DRAW THE CORRECT LEGAL PRESUMPTION DURING THE ORIGINAL ASSESSMENT DO NOT WARRANT THE INITIATION OF A PROCEEDING U/S 147. (E) I N CIT VS KANOI INDUSTRIES (P)LTD I N ITAT NO.108 OF 2012 DATED 15 TH JUNE, 2012 RENDERED BY JURISDICTIONAL CALCUTTA HIGH COURT , IT WAS HELD THAT WHERE THERE WAS NO NEW MATERIAL OR INFORMATION WHICH CAME TO THE KNOW LEDGE OF THE AO TO RE - INITIATE PROCEEDINGS AND SINCE HE HAD DERIVED THE FACTS AND MATERIALS PLACED BY THE ASSESSEE HIMSELF DURING THE ORIGINAL ASSESSMENT PROCEEDINGS , THAT DID NOT CONSTITUTE NEW INFORMATION. W HEN ON THE SAME SET OF FACTS AND MATERIALS AO TAKES BONA FIDE DECISION, IT IS NOT OPEN FOR THE SUBSEQUENT OFFICER TO REOP EN THE SAME JUST BECAUSE HE DOES NOT AGREE TO THE DECISION OF THE PREVIOUS OFFICER. IN THIS CASE THE TRIBUNAL HAS RECORDED THAT A MERE CHANGE OF OPINION BETWEEN TWO OFFICERS IN REOPENING THE ASSESSMENT AND IT IS NOT LEGALLY PERMISSIBLE. WE, THEREFORE, DO NOT FIND ANY INFIRMITY AND ILLEGALITY IN THE IMPUGNED JUDGMENT AND ORDER DATED 12 TH JANUARY, 2012 PASSED BY THE LEARNED TRIBUNAL. SINCE IN THIS CASE, A REGULAR ASSESSMENT WAS MADE U/S 143(3) OF THE ACT , PRESUMPTION CAN BE DRAW N THAT SUCH AN ORDER HAS BEE N PASSED ON APPLICATION OF MIND AND THE SUBSEQUENT ACTION OF THE AO IS NOTHING BUT A CHANGE OF OPINION. (F) I N ACIT VS ICICI SECURITIES PRIMARY DEALERSHIP LTD. (2012) 248 ITR 299 (SC) DATED 22.08.2012. THE APEX COURT IN CIVIL APPEAL NO.5960 OF 2012 HAS H ELD AS UNDER : - LEAVE GRANTED. WE HAVE HEARD COUNSEL ON BOTH SIDES. THE APPELLANT HAD DISCLOSED FULL D ETAILS IN THE RETURN OF I NCOME IN THE MATTER OF ITS DEALING IN STOCKS AND SHARES. ACCORDING TO THE ASSESSE E, THE LOSS INCURRED WAS A BUSINESS LOSS, WH EREAS ACCORDING TO THE REVENUE , THE LOSS INCURRED WAS A SPECULATIVE LOSS. REJECTION OF THE OBJECTION OF THE ASSESSEE TO REOPENING OF THE ASSESSMENT BY THE AO VIDE HI S ORDER DATED 23.06.2006, IS CLEARLY A CHANGE OF OPINION. IN THE CIRCUMSTANCES , WE ARE OF T HE VIEW THAT THE ORDER REOPENING THE ASSESSMENT WAS NOT MAINTAINABLE. THE CIVIL APPEAL IS ACCORDINGL Y DISMISSED. NO ORDER AS TO COSTS. FROM THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE AND RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENTS ON THE IMPUGN ED SUBJECT INCLUDING THAT OF THE HON BLE SUPREME ITA NO. 2302/KOL/2013 CALCUTTA CYCLE CO . A.YR. 2006 - 07 8 COURT , JURISDICTIONAL HIGH COURT AND OTHER HIGH COURTS, I HOLD THAT THE ASSUMPTION OF JURISDICTION U/S 147 OF THE ACT BY THE LEARNED AO, IS BASED ONLY ON CHANGE OF OPINION ; MADE WITHOUT ANY TANGIBLE MATE RIAL THAT CONSTITUTED NEW INFORMATION AND HENCE REOPENING OF THE ASSESSMENT U/S 148 OF THE ACT AND CONSEQUENTIAL REASSESSMENT ORDER PASSED U/S 147 IS BAD IN LAW AND ACCORDINGLY THE REASSESSMENT PROCEEDINGS STAND QUASHED. ACCORDINGLY, GROUND NOS. 1 TO 3 RAI SED BY THE ASSESSEE ARE ALLOWED. AS THE ISSUE IS DECIDED ON LEGAL GROUNDS IN FAVOUR OF THE ASSESSEE, THE ADJUDICATION OF THE ISSUE ON MERITS I.E. GROUND NOS. 4 AND 5 BECOMES INFRUCTUOUS AND ACCORDINGLY I REFRAIN TO GO INTO THE MERITS OF THE CASE. 9. IN T HE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNC ED IN TH E COURT . SD/ - [MAHAVIR SINGH] JUDICIAL MEMBER DATE: 07.08.2015. R.G .(.P.S.) COPY OF THE ORDER FORWARDED TO : 1 . CALCUTTA CYCLE CO.,C/O SHRI SOMNATH GHOSH, ADVOCATE, SEVEN BROTHERS LODGE, P.O.BUROSHIBTALA, CHINSURAH, DIST.HOOGHLY.PIN 712105. 2 D.C.I.T., CIRCLE - 2, MIDNAPORE . 3 . THE CIT, 4. T HE CIT(A) - XX X VI , KOLKATA. 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY , BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES