PANKAJ WADHAWA, MUMBAI V. INCOME TAX OFFICER-1(3)(4), MUMBAI

ITA 5006/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2213 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 21-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABI RAMA KARTIKEYAN
• Assessee Lawyers: PRAKASH JOTHWANI
• Keywords: Reopening of assessment; Deemed owner of house property; Tangible material; Difference of opinion; Reason to believe; Change of opinion
• Section: 143(3); 142(1); 147; 148

Judgement Text

1 ITA NO.5006 /MUM/2017 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI C.N. PRASAD (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) I.T.A NO.5006 /MUM/2017 (ASSESSMENT YEAR: 2009-10) SHRI PANKAJ WADHWA 8, CANDY HOUSE, MANDLIK ROAD, COLABA, MUMBAI-4 PAN : AABPW0921B VS ITO- 1(3)(4), MUMBAI APPELLANT RESPONDEDNT APPELLANT BY SHRI PRAKASH JOTHWANI RESPONDENT BY SHRI ABI RAMA KARTIKEYAN DATE OF HEARING 13-11-2018 DATE OF PRONOUNCEMENT 16-11-2018 O R D E R PER G MANJUNATHA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE CIT(A)-3, MUMBAI DATED 17-05-2017 AND IT PERTAINS T O AY 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- A) REOPENING OF ASSESSMENT 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) - 3 (MUMBAI) FCIT(A)] ERRED ON FACTS AND IN LAW IN UPHOLDING THE REOPENING OF ASSESSMENT U/S. 147 BY HOLDING THAT 'THE APPELLANT HAS NOT POINTED OUT ANY REASON TO INVOKE SECTION 147 OF THE I T ACT TO R EASSESS THE INCOME OF THE APPELLANT.' 2 ITA NO.5006 /MUM/2017 2) THE LEARNED CIT(A) ERRED ON FACTS AND IN LA W IN NOT CONSIDERING THE SUBMISSIONS OF THE APPELLANT IN CONNECTION WITH THE REOPENING OF ASSESSMENT, 3) THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT THERE WAS NO FAILURE ON THE PART OF THE APPELLANT WHICH WOULD JU STIFY THE REOPENING OF ASSESSMENT U/S, 147. HENCE, THE REOPENING OF ASSESS MENT IS BAD IN LAW. 4) THE LEARNED CIT(A) FURTHER ERRED IN NOT APPR ECIATING THAT THE REOPENING OF ASSESSMENT AMOUNTED TO CHANGE OF OPINI ON AND HENCE THE REOPENING OF ASSESSMENT WAS BAD IN LAW. 5) THE APPELLANT PRAYS THAT THE REOPENING OF A SSESSMENT U/S. 147 MAY BE HELD TO BE BAD IN LAW AND THE ORDER U/S. 143(3) R.W.S. 147 MAY BE ANNULLED. B) WITHOUT PREJUDICE TO THE ABOVE, ASSESSING I NCOME FROM HOUSE PROPERTY AT RS. 5,88,073/- AS AGAINST THE RETURNED 'INCOME FROM HOUSE PROPERTY' OFRS.310/- 6) THE LEARNED CIT(A) ERRED ON FACTS AND IN LA W IN UPHOLDING THE ORDER OF THE AO ASSESSING THE INCOME FROM HOUSE PRO PERTY AT RS. 5,88,073/- AS AGAINST THE RETURNED INCOME FROM HOUS E PROPERTY OF RS.310/-. 7) THE LEARNED CIT(A) ERRED IN NOT APPRECIATIN G THAT THE APPELLANT HAD ONLY 50% SHARE IN FLAT NO. 15 AND THE BALANCE 5 0% WAS OWNED BY THE APPELLANT'S MOTHER, WHO WAS RESIDING IN THE SAID FL AT TILL HER DEATH AND HENCE THE SAID FLAT COULD NOT BE LET OUT BY THE APP ELLANT. 8) WITHOUT PREJUDICE TO THE ABOVE, THE LEARNE D CIT(A) ERRED IN NOT APPRECIATING THAT THE SOCIETY HAD AT THE TIME OF TR ANSFER OF FLAT NO. 15 PLACED A CONDITION THAT THE SAID FLAT COULD NOT BE LET AND WAS TO BE USED ONLY FOR SELF OCCUPATION. HENCE, THERE COULD BE NO ANNUAL LETABLE VALUE WITH RESPECT TO THE SAID FLAT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL DERIVES INCOMES FROM SALARY, HOUSE PROPERTY, CAPITAL GAINS AND INCOME FROM OTHER SOURCES, FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME AT RS.7,99,38,492. THE ASSESSMENT WAS COMPLETED U/S 143(3) ON 12-12-20 11 DETERMINING THE TOTAL INCOME AT RS.8,13,37,870. THE ASSESSEE HAD F ILED APPEAL AGAINST THE ORDER U/S 143(3) AND THE CIT(A) ALLOWED THE APPEAL AND CONSEQUENTLY, THE INCOME OF THE ASSESSEE STOOD REDUCED TO RS.7,99,38, 492. 3 ITA NO.5006 /MUM/2017 3. THEREAFTER, THE AO REOPENED THE ASSESSMENT U/S 1 47 OF THE I.T. ACT, 1961 FOR THE REASONS RECORDED, AS PER WHICH, INCOME ESCA PED ASSESSMENT ON ACCOUNT OF UNDER ASSESSMENT OF INCOME FROM HOUSE PR OPERTY. ACCORDINGLY NOTICE U/S 148 DATED 30-03-2015 WAS ISSUED. IN RES PONSE, THE ASSESSEE HAS FILED ITS OBJECTION VIDE LETTER DATED 24-04-2015. THE ASSESSEES OBJECTIONS WERE DISPOSED OF BY THE AO VIDE HIS ORDER DATED 07- 01-2016. THEREAFTER, THE CASE HAS BEEN SELECTED FOR SCRUTINY AND NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED. IN RESPONSE TO NOTICES, THE AUTHO RIZED REPRESENTATIVE OF THE ASSESSEE APPEARED AND FILED THE DETAILS, AS CALLED FOR. THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3) R.W.S. 147 ON 15-03-2016 DETERMINING THE TOTAL INCOME AT RS.8,05,26,260 BY MAKING ADDITION TOWARDS INCOME FROM HOUSE PROPERTY OF RS.5,87,763. 4. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE PREF ERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE HAS CHALLE NGED REOPENING OF ASSESSMENT ON THE GROUND THAT THE ASSESSMENT HAS BE EN REOPENED MERELY ON CHANGE OF OPINION WITHOUT THERE BEING ANY TANGIBLE MATERIAL WHICH SUGGESTS ESCAPEMENT OF INCOME. THE ASSESSEE ALSO CHALLENGED THE ADDITION MADE BY THE AO TOWARDS DEEMED LET OUT VALUE OF HOUSE PROPERTY O N THE GROUND THAT DETERMINATION OF ANNUAL LETTING VALUE OF HOUSE PROP ERTY ON THE BASIS OF REPORT OF INSPECTOR IS INCORRECT. 4 ITA NO.5006 /MUM/2017 5. THE LD.CIT(A), AFTER CONSIDERING RELEVANT SUBMIS SIONS OF THE ASSESSEE, REJECTED LEGAL GROUND TAKEN BY THE ASSESSEE CHALLEN GING REOPENING OF ASSESSMENT BY HOLDING THAT THE ASSESSEE HAS NOT DIS CLOSED FULLY AND TRULY ALL MATERIAL FACTS NEEDED FOR COMPLETION OF ASSESSMENT IN RESPECT OF TWO HOUSE PROPERTIES. THEREFORE, THE AO WAS RIGHT IN REOPENI NG OF THE ASSESSMENT AS THE INCOME HAS BEEN ESCAPED ASSESSMENT IN RESPECT OF AN NUAL LETTING VALUE OF HOUSE PROPERTIES. INSOFAR AS ADDITION MADE BY THE AO TOWARDS INCOME FROM HOUSE PROPERTY, THE LD.CIT(A) OBSERVED THAT THE AO HAS DETERMINED ANNUAL LETTING VALUE OF THE PROPERTY ON THE BASIS OF PREVA ILING MARKET RENT IN THE LOCALITY BY OBTAINING REPORT FROM THE INSPECTOR, AS PER WHICH THE PROPERTY MAY FETCH RENTAL INCOME OF RS.90,000 PER MONTH. THE LD .CIT(A) FURTHER OBSERVED THAT THE ARGUMENTS OF THE ASSESSEE THAT ON THE BASI S OF MUNICIPAL VALUATION IT HAS DETERMINED ANNUAL LETTING VALUE OF THE HOUSE PR OPERTY, IS INCORRECT, AS THE CO-OPERATIVE SOCIETY IS NOT AN AUTHORITY UNDER ANY LAW OF THE LAND TO DETERMINE THE RENTAL VALUE OR MUNICIPAL VALUE OF THE RESIDENT IAL HOUSE. FURTHER, HOW COULD A FLAT ADMEASURING 1270 SQ.FT. AT A PRIME LOC ATION CAN FETCH SUCH A NEGLIGIBLE AMOUNT OF MONTHLY RENT. SINCE THE AO HA S DETERMINED THE ANNUAL LETTING VALUE OF THE PROPERTY ON THE BASIS OF PREVA ILING MARKET RENT, THERE IS NO REASON TO INTERFERE WITH THE FINDING OF THE AO AND ACCORDINGLY, REJECTED THE ARGUMENTS OF THE ASSESSEE AND CONFIRMED ADDITION MA DE BY THE AO. AGGRIEVED 5 ITA NO.5006 /MUM/2017 BY THE ORDER OF LD.CIT(A), ASSESSEE IS IN APPEAL BE FORE US. 6. THE LD.AR FOR THE ASSESSEE SUBMITTED THAT THE LD .CIT(A) WAS ERRED IN UPHOLDING REOPENING OF ASSESSMENT WITHOUT APPRECIAT ING THE FACT THAT NOWHERE IN THE REASONS RECORDED BY THE AO IT SAYS T HAT THERE IS A FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY AL L MATERIAL FACTS NECESSARY FOR COMPLETION OF ASSESSMENT. THEREFORE, THE REOPENING OF ASSESSMENT AFTER FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEARS CANNOT BE MADE UNLESS THE AO ALLEGE THAT THERE IS A FAILURE ON THE PART O F THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL FACTS NECESSARY FOR COMPLETION OF ASS ESSMENT. THE LD.AR FURTHER SUBMITTED THAT THE ASSESSEE HAS DISCLOSED COMPLETE FACTS IN RESPECT OF TWO RESIDENTIAL HOUSE PROPERTIES IN HIS RETURN OF INCOM E. THE AO, DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE HAS ACCEPTED INCOME DECLARED UNDER THE HEAD INCOME FROM HOUSE PROPERTY. SINCE THE ASSESSMENT HAS BEEN REOPENED AFTER FOUR Y EARS FROM THE END OF THE RELEVANT ASSESSMENT YEARS WITHOUT ALLEGING THAT THE RE IS FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERI AL FACTS NECESSARY FOR ASSESSMENT, REOPENING OF ASSESSMENT IS BAD IN LAW A ND CONSEQUENT ASSESSMENT PROCEEDINGS ARE LIABLE TO BE QUASHED. IN THIS REGA RD, HE RELIED UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F SRIRAM FOUNDRY LTD VS DCIT (2013) 350 ITR 115 (BOM). THE LD.AR ALSO RELI ED UPON THE DECISION OF 6 ITA NO.5006 /MUM/2017 HONBLE BOMBAY HIGH COURT IN THE CASE OF ARONI COMM ERCIALS LTD VS DCIT (2014) 362 ITR 403 (BOM). 7. THE LD.DR, ON THE OTHER HAND, SUBMITTED THAT THE ASSESSMENT HAS BEEN VALIDLY REOPENED BY RECORDING REASONS, AS PER WHICH INCOME CHARGEABLE TO TAX HAD BEEN ESCAPED ASSESSMENT WITHIN THE MEANING OF S ECTION 147 OF THE ACT WHICH IS CLEAR FROM THE REASONS RECORDED BY THE AO THAT THE ASSESSEE HAS NOT DISCLOSED COMPLETE PARTICULARS OF RESIDENTIAL HOUSE PROPERTIES IN HIS RETURN OF INCOME AND EVEN DURING ASSESSMENT PROCEEDINGS U/S 1 43(3) OF THE ACT. THE LD.DR FURTHER SUBMITTED THAT AT THE TIME OF REOPENI NG OF ASSESSMENT, THE AO NEED NOT PROVE ESCAPEMENT OF ASSESSMENT AND WHAT IS NEEDED IS A PRIMA FACIE BASIS FOR REOPENING OF ASSESSMENT WHICH SUGGESTS ES CAPEMENT OF INCOME. IN THIS CASE, AS PER THE REASONS RECORDED FOR REOPENIN G OF ASSESSMENT, THERE IS ENOUGH MATERIAL TO FORM A REASONABLE BELIEF OF ESCA PEMENT OF INCOME AND ACCORDINGLY, THERE IS NO MERIT IN THE ARGUMENTS OF THE ASSESSEE THAT REOPENING OF ASSESSMENT IS ON THE BASIS OF CHANGE OF OPINION. 8. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. ADMITTEDLY, THE ASSESSMENT HAS BEEN REOPENED AFTER 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. IT IS ALSO AN ADMITTED FACT THAT THE ORIGINAL ASSES SMENT HAS BEEN COMPLETED U/S 143(3) OF THE INCOME-TAX ACT, 1961. WHEN THE ASSES SMENT HAS BEEN 7 ITA NO.5006 /MUM/2017 COMPLETED U/S 143(3) AND THE REOPENING OF ASSESSMEN T HAS BEEN DONE AFTER FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEARS, THEN THE PROVISO TO SECTION 147 WILL COME INTO OPERATION. AS PER THE S AID PROVISO, BEFORE REOPENING OF ASSESSMENT, THE JURISDICTIONAL CONDITI ON IS THAT IN SUCH CASE BEFORE AN ASSESSMENT CAN BE VALIDLY REOPENED, THERE MUST BE A FAILURE ON THE PART OF THE ASSESSEE TO STATE FULLY AND TRULY ALL M ATERIAL FACTS NECESSARY FOR THE ASSESSMENT. ON PERUSAL OF REASONS RECORDED FOR REO PENING OF ASSESSMENT, ABSOLUTELY, THERE IS NO REFERENCE TO THERE BEING AN Y FAILURE ON THE PART OF THE ASSESSEE TO FULLY AND TRULY DISCLOSE ALL MATERIAL F ACTS NECESSARY FOR ASSESSMENT. THE REASONS DISCLOSED TO THE ASSESSEE, IN FACT, MER ELY INDICATE A REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. THERE IS NO REFERENCE, WHATSOEVER, TO THE FORMATION OF OPINION THAT THERE WAS A FAILURE ON THE PART OF THE ASSESSEE TO FULLY AND TRULY DISCLOSE ALL MATERI AL FACTS. ON THE OTHER HAND, FROM THE PERUSAL OF RECORDS IT IS ABUNDANTLY CLEAR THAT THE ASSESSEE HAS DISCLOSED NECESSARY FACTS IN RESPECT OF INCOME FROM HOUSE PROPERTY IN HIS RETURN OF INCOME AND ALSO BEFORE THE AO AT THE TIME OF 143(3) PROCEEDINGS. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT TH E CONDITION PRECEDENT TO THE INVOCATION OF THE JURISDICTION IS CLEARLY ABSEN T SINCE THERE IS NOT EVEN AN AVERMENT TO THE EFFECT THAT THERE WAS FAILURE ON TH E PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR ASSESSMENT. THIS LEGAL 8 ITA NO.5006 /MUM/2017 PROPOSITION IS SUPPORTED BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF SRIRAM FOUNDRY LTD VS DCIT (SUPRA), WHEREIN THE HONBLE HIGH COURT HELD THAT THE JURISDICTIONAL CONDITION IS THAT IN S UCH CASE, BEFORE AN ASSESSMENT CAN BE VALIDLY REOPENED , THERE MUST BE FAILURE ON THE PART OF THE ASSESEE TO STATE FULLY AND TRULY ALL THE MATERIAL FACTS NECESS ARY FOR THE ASSESSMENT. THIS POSITION IS FURTHER STRENGTHENED BY A NUMBER OF JUD ICIAL PRECEDENTS, INCLUDING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CA SE OF ARONI COMMERCIALS LTD VS DCIT (SUPRA) WHEREIN THE HONBLE COURT, AFTE R CONSIDERING THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF CI T VS KELVINATOR OF INDIA LTD (2010) 320 ITR 561 (SC) HELD THAT THE POWER TO RE-ASSESS CANNOT BE EXERCISED ON THE BASIS OF MERE CHANGE OF OPINION, I .E. IF ALL FACTS ARE AVAILABLE ON RECORD AND A PARTICULAR OPINION IS FORMED, THEN MERELY BECAUSE THERE IS CHANGE OF OPINION ON THE PART OF THE AO NOTICE U/S 147 / 148 OF THE ACT IS NOT PERMISSIBLE. THE RELEVANT OBSERVATIONS OF THE COUR T ARE AS UNDER:- THE COMMON JURISDICTIONAL REQUIREMENT FOR REOPENIN G OF ASSESSMENTBOTH -WITHIN AND BEYOND A PERIOD OF FOUR YEARS HAS TO BE ON THE BASIS OF -, REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND THE REASON FOR ISSUING A NOT ICE TO REOPEN ARE RECORDED BEFORE ISSUING A NOTICE. HOWEVER, THERE IS ONE ADDITIONAL JURISDICTIONAL REQUIREMENT TO BE SATISF IED WHILE SEEKING TO REOPEN THE ASSESSMENT BEYOND THE PERIOD OF FOUR Y EARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, VIZ., THAT THERE MUST HAVE BEEN A FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRUL Y ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT DURING THE ORIGINAL ASSESS MENT PROCEEDINGS. THUS, THE PRIMARY REQUIREMENT TO REOPEN ANY ASSESSM ENT IS A REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED A SSESSMENT. HOWEVER, AS OBSERVED BY THE SUPREME COURT IN THE CASE OF CIT V. KELVINATOR OF 9 ITA NO.5006 /MUM/2017 INDIA LTD, [2010] 320 ITR 561 (SC), IN THE CONTEXT O F SECTION 147/ 148 OF THE ACT THAT REASON TO BELIEVE FOUND THEREIN DOES NO T GIVE ARBITRARY POWERS TO REOPEN AN ASSESSMENT. THE CONCEPT OF CHAN GE OF OPINION IS EXCLUDED/OMITTED FROM THE WORDS 'REASON TO BELIEVE'. THUS A CHANGE OF OPINION WOULD NOT BE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. BESIDES THE POWER TO RE ASSESS IS NOT A POWER TO REVIEW. FURTHER,REOPENING MUST BE ON THE B ASIS OF TANGIBLE MATERIAL. THEREFORE, THE POWER TO REASSESS CANNOT BE EXERCISE D ON THE BASIS OF MERE CHANGE #F OPINION, I.E., IF ALL FACTS ARE AVAILABLE ON RECORD AND A PARTICULAR OPINION IS FORMED, THEN MERELY BECAUSE THERE IS CHANGE OF OPINION ON THE PART OF THE ASSESSING OFFICER NOT ICE UNDER SECTION 147/148 OF THE ACT IS NOT PERMISSIBLE. THE POWERS UNDER SECTION 147/148 OF THE ACT CANNOT BE EXERCISED TO CORRECT E RRORS/MISTAKES ON THE PART OF THE ASSESSING OFFICER 'WHILE PASSING TH E ORIGINAL ORDER OF ASSESSMENT. THERE IS A SANCTITY BESTOWED ON AN ORDE R OF ASSESSMENT AND THE SAME CAN BE DISTURBED BY EXERCISE OF POWERS UNDER SECTION 147/148 OF THE ACT ONLY ON SATISFACTION OF TH E JURISDICTIONAL REQUIREMENTS. FURTHER, THE REASONS FOR REOPENING AN ASSESSMENT HAS TO BE TESTED/EXAMINED ONLY ON THE BASIS OF THE REASONS RECORDED AT THE TIME OF ISSUING A NOTICE UNDER SECTION 148 OF THE A CT SEEKING TO REOPEN AN ASSESSMENT THESE REASONS CANNOT BE IMPROVED U PON AND/OR SUPPLEMENTED MUCH LESS SUBSTITUTED BY AFF IDAVIT AND/OR ORAL SUBMISSIONS. MOREOVER, THE REASONS FOR REOPENING AN ASSESSMENT SHOULD BE THAT OF THE ASSESSING OFFICER ALONE WHO I S ISSUING THE NOTICE AND HE CANNOT ACT MERELY ON THE DICTATES OF ANY ANO THER PERSON IN ISSUING THE NOTICE. MOREOVER, THE TANGIBLE MATERIAL UPON THE BASIS OF WHICH THE ASSESSING OFFICER COMES TO THE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT CAN COME TO HIM FROM ANY SOURCE, HOWEVER, REASONS FOR THE REOPENING HAS TO BE ONLY OF THE ASSESSING OFFICER ISSUING THE NOTICE. AT THE STAGE OF ISSUING NOTICE UNDER SECTION 148 OF THE ACT TO REOPEN A CON CLUDED ASSESSMENT THE SATISFACTION OF THE ASSESSING OFFICER ISSUING T HE NOTICE IS OF PRIMARY IMPORTANCE. THIS SATISFACTION MUST BE PRI MA FACIE SATISFACTION OF HAVING A REASON TO BELIEVE THAT INC OME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. AT THE STAGE OF THE ISS UING OF THE NOTICE UNDER SECTION 148 OF THE ACT IT IS NOT NECESSARY FO R THE ASSESSING OFFICER TO ESTABLISH BEYOND DOUBT THAT INCOME INDEE D HAS ESCAPED ASSESSMENT.' 9. IN THIS VIEW OF THE MATTER AND RESPECTFULLY FOLL OWING THE CASE LAWS 10 ITA NO.5006 /MUM/2017 DISCUSSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT REOPENING OF ASSESSMENT IS BAD IN LAW AS THE AO HAS REOPENED THE ASSESSMENT ON CHANGE OF OPINION WITHOUT THERE BEING ANY FRESH MATERIAL WHICH SUGGES TS ESCAPEMENT OF INCOME AND ALSO THERE IS NO ALLEGATION BY THE AO THAT THER E IS A FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE MA TERIAL FACTS NECESSARY FOR ASSESSMENT. HENCE, WE QUASH THE RE-ASSESSMENT PROC EEDINGS AND CONSEQUENT ADDITION MADE BY THE AO TOWARDS INCOME FROM HOUSE P ROPERTY. 10. THE ASSESSEE HAS TAKEN GROUNDS ON MERITS OF THE ADDITION VIDE GROUNDS 6 TO 8 OF GROUNDS OF APPEAL. SINCE WE HAVE QUASHED T HE RE-ASSESSMENT ORDER ITSELF, THE GROUND TAKEN BY THE ASSESSEE ON MERITS OF THE ADDITION BECOMES ACADEMIC IN NATURE AND NOT REQUIRED TO BE ADJUDICAT ED UPON. 11. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH NOVEMBER, 2018. SD/- SD/- (C.N. PRASAD) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 16 TH NOVEMBER, 2018 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI