JAGDISH U. THACKERSAY, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX (CIRCLE) 2(1), MUMBAI

ITA 5045/MUM/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8805 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 25-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Depreciation; Search and seizure; Audit objection; Tangible material; Difference of opinion; Capital receipt; Reason to believe; Change of opinion; Set aside; Capital Gains
• Section: 143(3); 54F; 234B; 191; 54EC; 13; 153; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI VIKAS AWASTHY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 5045/MUM/2017 ASSESSMENT YEAR: 2008-09 SHRI JAGDISH U. THACKERSEY, 13, SIR VITHALDAS CHAMBERS 16, MUMBAI SAMACHAR MARG, FORT, MUMBAI-400023. VS. DY. COMMISSIONER OF INCOME TAX (CIRCLE) 2(1), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. PAN NO. AAFPT4701L APPELLANT RESPONDENT ASSESSEE BY : MR. K. GOPAL, AR REVENUE BY : MS. USHA GAIKWAD, DR DATE OF HEARING : 29/12/2020 DATE OF P RONOUNCEMENT : 11/01/2021 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2008-09. THE APPEAL IS DIRECTED AGAINST THE ORDER O F THE COMMISSIONER OF INCOME TAX (APPEALS)-4, MUMBAI [IN SHORT CIT(A)] AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) R.W.S. 147 THE INCO ME TAX ACT 1961, (THE ACT). ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 2 2. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE READ AS UNDER : 1. THAT THE ORDER OF THE LD. CIT(A) IS CONTRARY TO FAC TS, LAW AND CIRCUMSTANCES OF THE CASE. HENCE THE SAME NEEDS TO BE SET ASIDE. 2. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACT ION OF THE ASSESSING OFFICER FOR REOPENING THE ASSESSMENT U/S 147 OF THE ACT. THE AP PELLANT SUBMITS THAT THE SAME IS ILLEGAL, BAD IN LAW AND NON-EST. 3. THAT REOPENING AN ASSESSMENT COMPLETED UNDER SECTIO N 143(3) OF THE ACT IS WITHOUT JURISDICTION AND IS MERELY BASED ON A CHANG E OF OPINION AS THE APPELLANT HAD DISCLOSED FULLY AND TRULY ALL THE MATERIAL FACT S AT THE TIME OF ORIGINAL ASSESSMENT MADE U/S 143(3) OF THE SAID ACT. HENCE T HE REASSESSMENT MADE U/S 147 IS BAD IN LAW, ILLEGAL AND NON-EST. 4. THAT THE LD. CIT(A) ERRED IN NOT APPRECIATING THE F ACT THAT ASSESSING OFFICER HAS REOPENED THE CASE ON THE BASIS OF AUDIT OBJECTION, AND THEREFORE THE REOPENING OF ASSESSMENT IS ILLEGAL, BAD-IN-LAW AND NON-EST. 5. WITHOUT PREJUDICE TO THE ABOVE, APPELLANT SUBMITS T HE FOLLOWING: (I) THE LD. CIT(A) ERRED IN MAKING OBSERVATIONS ABOUT O THER CONDITIONS OF SECTION 54F WHICH IN THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW WAS NOT CALLED FOR OR RELEVANT. (II) THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF TH E ASSESSING OFFICER IN RESTRICTING EXEMPTION U/S 54F TO RS.57,04,578/- FOR REINVESTMENT OF SALE PROCEEDS TOWARDS ALIBAUG PROPERTY AS AGAINST RS.5,7 0,45,771/- CLAIMED BY THE APPELLANT. THE APPELLANT SUBMITS THAT THE EX EMPTION U/S. 54F OF RS.5,70,45,771/- HAS RIGHTLY BEEN CLAIMED AND OUGHT TO HAVE BEEN ALLOWED. (III) THAT THE LD. CIT(A) ERRED IN CONFIRMING THE FINDING OF THE ASSESSING OFFICER THAT THE APPELLANT HAS PURCHASED LARGE PIEC E OF AGRICULTURE LAND, AND THE BUILDINGS ARE ONLY SMALL AREA OF PLOT PURCH ASED. (IV) THAT THE LD. CIT(A) ERRED IN NOT APPRECIATING THE F ACT THAT THE AREA OF RESIDENTIAL PROPERTY PURCHASED IS 7100 SQ. FEET I.E . 6700 PLUS 400 SQUARE ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 3 FEET AND NOT ONLY 400 SQUARE FEET AS MISCONCEIVED B Y THE ASSESSING OFFICER. (V) THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER OF DISALLOWING THE EXEMPTION ON ESTIMATE BASIS. THE APPELLANT SUBMITS THAT DISALLOWANCE ON BASIS OF ESTIMATES AND PRESUMP TIONS IS NOT WARRANTED AND OUGHT TO BE DELETED. (VI) THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF TH E ASSESSING OFFICER IN CHARGING EXCESS INTEREST U/S.234B AT RS.86,48,016/- . THE APPELLANT SUBMITS AS PER THE PROVISIONS OF THE ACT, THE INTER EST U/S 234B WORKS OUT TO RS.45,37,227/-. 3. THE 1ST GROUND OF APPEAL IS GENERAL IN NATURE. WE B EGIN WITH THE 2ND, 3RD AND 4TH GROUND OF APPEAL WHICH RELATE TO THE IS SUE OF REOPENING OF ASSESSMENT. BRIEFLY STATED, THE FACTS OF THE CASE A RE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR (AY) 2008- 09 ON 31.03.2009 DECLARING TOTAL INCOME OF RS.58,03,49,618/-. ASSESS MENT U/S 143(3) WAS COMPLETED BY THE ASSESSING OFFICER (AO) ON 22.12.20 10 ACCEPTING THE ABOVE INCOME. THEREAFTER, THE AO RE-OPENED THE ASSESSMENT , ON 30.03.2013, WITHIN FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, AFTER RECORDING THE FOLLOWING REASONS : IT IS SEEN THAT THE ASSESSEE HAS CLAIMED EXEMPTION U/S 54F FOR RS.5,70,45,771/- ON PURCHASE OF AGRICULTURAL LAND WITH ONE RESIDENTIAL HOUSE OF 400 SQ. FT. ASSESSEE HAS BASICALLY PAID THE CONSIDERATION FOR ACQUIRING AGRI CULTURAL LAND AND EXEMPTION U/S 54F IS EXTENDABLE ONLY FOR ACQUIRING RESIDENTIAL HO USE PROPERTY. IN VIEW OF THE FACT THAT THE RESIDENTIAL HOUSE PROPERTY COMPRISES ONLY 400 SQ. FT. ON THE AFORESAID LAND, EVEN IF 10% OF THE CONSIDERATION IS ATTRIBUTABLE TO THE HOUSE PROPERTY, BALANCE IS ADMISSIBLE. ACCORDINGLY EXEMPTION U/S 54F ALLOWED O F RS.5,13,41,193/- IS IRREGULAR AND HENCE, NEEDS TO BE WITHDRAWN. ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 4 IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR A.Y. 2008-09 BY REASON OF TH E FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS NECESSARY FOR ASSESSMENT AND ALSO BY THE REASON THAT THE INCOME HAS ESCAPED ASSE SSMENT WITHIN THE MEANING OF SEC. 147 OF THE I.T. ACT, 1961. ACCORDINGLY, THE AS SESSMENT FOR A.Y. 2008-09 IS REOPENED BY ISSUE OF NOTICE U/S 148 OF THE I.T ACT, 1961. 3.1 DURING THE COURSE OF RE-ASSESSMENT PROCEEDINGS, THE AUTHORIZED REPRESENTATIVE OF APPELLANT SUBMITTED BEFORE THE AO VIDE LETTER DATED 25.03.2014 (I) THAT THE RE-OPENING IS BASED ON ERRO NEOUS FACTS BECAUSE THE RESIDENTIAL HOUSE PROPERTY PURCHASED COMPRISES OF 6 700 SQ. FT. AND 400 SQ. FT. AND NOT ONLY 400 SQ. FT. AS MENTIONED BY THE AO, (I I) THAT THE ASSESSEE HAD SOLD LONG TERM SHARES IN JUNE 2006 AND OFFERED THE LONG TERM CAPITAL GAINS TO TAX ; AGAINST THE CAPITAL GAINS EARNED, HE HAD CLAIMED DE DUCTION U/S 54EC AND 54F; THE ASSESSEE HAD PURCHASED A RESIDENTIAL PROPERTY A T ALIBAUG AMOUNTING TO RS.5,75,00,000/- ON 12.06.2009, WITHIN 2 YEARS OF T HE CAPITAL GAINS EARNED, (III) THAT THE WORKING OF THE CAPITAL GAINS WAS SUB MITTED VIDE LETTER DATED 29.11.2010 DURING THE ORIGINAL ASSESSMENT PROCEEDIN GS; THE COPY OF THE PURCHASE AGREEMENT ALONG WITH DETAILS OF PAYMENT MA DE FOR ACQUIRING THE SAID PROPERTY WAS ALSO SUBMITTED, (IV) THAT AS PER THE DOCUMENTS FILED, THE ASSESSEE HAD PURCHASED A RESIDENTIAL PROPERTY COMPR ISING OF 6700 SQ. FT. AND 400 SQ. FT. ALONG WITH LAND APPURTENANT THERETO AND (V) THAT THE DEDUCTION CLAIMED BY THE ASSESSEE IS CORRECT AND OUGHT TO BE ALLOWED AS CLAIMED. HOWEVER, THE AO WAS NOT CONVINCED WITH THE ABOVE E XPLANATION OF THE ASSESSEE AND WITHDREW CLAIM OF RS.5,13,41,193/-, TH EREBY RESTRICTING THE DISALLOWANCE U/S 54F TO RS.57,04,578/-. ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 5 4. IN APPEAL, THE LD. CIT(A) AFFIRMED THE REOPENING MADE BY THE AO ON THE GROUND (I) THAT IN COMPUTATION OF INCOME ORIGINALLY FILED ALONG WITH THE RETURN OF INCOME, IT IS NOT CLEAR THAT THERE WAS ALSO AN I NVESTMENT IN AGRICULTURAL LAND; THERE WAS NO NOTE ON SUCH CLAIM OF EXEMPTION OF RS. 5,70,45,771/- U/S 54F OF THE ACT, (II)THAT WHILE MAKING THE ASSESSMENT U/S 1 43(3), THE AO HAS MERELY ACCEPTED THE RETURNED INCOME WITHOUT ANY EXAMINATIO N OF THE ALLOWABILITY OF CLAIM OF DEDUCTION U/S 54F, (III) THAT IN THE ORIGI NAL ASSESSMENT ORDER, NO SPECIFIC SHOW CAUSE WAS ISSUED ON THE ABOVE MATTER NOR WAS THE ACTUAL FACT VERIFIED, (IV) THAT IN THE PURCHASE DEED/DEED OF CO NVEYANCE, THERE ARE HIDDEN FACTS WHICH CANNOT BE NOTICED UNLESS RESEARCH IS DO NE; FOR INSTANCE, AS PER THE LETTER DATED 29.11.2010 FILED BY THE ASSESSEE BEFOR E THE AO, THE ASSESSEE HAD PURCHASED RESIDENTIAL PROPERTY AT ALIBAUG WHEREAS T HE PURCHASE DEED DEALS WITH THE NEW FLAT THAT AGRICULTURAL LANDS WHERE PUR CHASED FROM TOPNOTCH REALTY PVT. LTD. AND MR. ALI ABBAS & ORS ; THAT THE RE IS A RESIDENTIAL HOUSE WITH REFERENCE TO A SEPARATE PROPERTY HAVING SURVEY NO. 465/1 AND 465/2 AND THEREFORE, AGRICULTURAL LAND HAVING GATT NOS. 461 T O 464 ARE DIFFERENT. ON MERIT ALSO, THE LD. CIT(A) CONFIRMED THE DISALL OWANCE OF CLAIM OF DEDUCTION U/S 54F OF THE ACT TO THE EXTENT OF RS.5, 13,41,193/- MADE BY THE AO. 5. BEFORE US, THE LD. COUNSEL FOR THE APPELLANT SUB MITS THAT THE ASSESSEE HAD EARNED LONG TERM CAPITAL GAINS ON SALE OF SHARE S AMOUNTING TO RS.64,30,59,971/- IN THE IMPUGNED ASSESSMENT YEAR A ND ACCORDINGLY CLAIMED EXEMPTION U/S 54EC OF RS.50,00,000/- AND U/S 54F OF RS.5,70,45,771/-. IT IS STATED THAT THE APPELLANT HAD PURCHASED A RESIDENTI AL PROPERTY HAVING TOTAL AREA OF 7100 SQ. FT. WHICH CONSIST OF MAIN HOUSE NO . 1057 OF 6700 SQ. FT. AND A ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 6 OUTHOUSE HAVING HOUSE NO. 1059 OF 400 SQ. FT. ALONG WITH LAND APPURTENANT THERETO VIDE AGREEMENT DATED 12.06.2009. ACCORDINGLY THE APPELL ANT CLAIMED EXEMPTION U/S 54F AND NOT A RESIDENTIAL UNIT OF ONL Y 400 SQ. FT., AS MENTIONED BY THE AO. IT IS FURTHER STATED BY THE LD. COUNSEL THAT DURIN G THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, THE AO HAD INQUIRED ABOUT T HE CAPITAL GAINS AND ALSO ASKED FOR DETAILS OF EXEMPTION CLAIMED U/S 54EC AND 54F; THE TRANSACTION DETAILS, AGREEMENT FOR PURCHASE OF PROPERTY, DETAIL S OF PROPERTY OWNED, CAPITAL GAINS CALCULATION AND NOTE ON EXEMPTION CLAIMED U/S 54F AND 54EC WERE SUBMITTED BY THE APPELLANT BEFORE THE AO VIDE LETTER DATED 29.11.2010. IT IS EXPLAINED BY THE LD. COUNSEL THAT THE DETAIL S OF EXEMPTION CLAIMED U/S 54F WERE CALLED FOR AND EXAMINED BY THE AO DURI NG THE ORIGINAL ASSESSMENT PROCEEDINGS U/S 143(3), THEREFORE, IT IS A CLEAR CHANGE OF OPINION ON THE SAME SET OF FACTS BY THE AO AND IT NOT PERMI SSIBLE FOR HIM TO RESORT TO PROCEEDINGS U/S 147 OF THE ACT. ELABORATING FURTHER , IT IS ARGUED BY HIM THAT THE EXPRESSION MATERIAL FACTS REFERS ONLY TO PRIM ARY FACTS AND THE DUTY OF THE ASSESSEE IS TO DISCLOSE SUCH PRIMARY FACTS ; NO DUT Y IS CAST ON THE ASSESSEE TO INDICATE OR DRAW ATTENTION OF THE AO TO WHAT FACTUA L OR LEGAL, OR OTHER INFERENCES CAN BE DRAWN FROM THE PRIMARY FACTS DISC LOSED. IT IS THUS STATED BY HIM THAT FRESH APPLICATION OF MIND BY THE AO ON SAM E FACTS WOULD TANTAMOUNT TO REVIEW OF OWN DECISION AND AMENDED SECTION 147 D OES NOT AUTHORIZE THE AO TO REOPEN THE ASSESSMENT UNDER THE GARB OF REASON TO BELIEVE TO REVIEW HIS OWN DECISION. FURTHER EXPLAINING THAT THERE WAS NO TANGIBLE MATERIAL BEFORE ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 7 THE AO ON THE BASIS OF WHICH THE CASE CAN BE REOPEN ED, IT IS SUBMITTED THAT ANY DIFFERENT VIEW TAKEN BY THE AO AMOUNTS TO CHANGE OF OPINION. ON THE ABOVE, RELIANCE IS PLACED BY THE LD. COUNSE L ON DECISION BY THE HONBLE BOMBAY HIGH COURT IN STATE BANK OF INDIA V. ACIT (2018) 96 TAXMANN.COM 77 (BOM) AND MARICO LTD. V. ACIT (2019) 111 TAXMANN.COM 253 (BOM) SLP BY REVENUE DISMISSED BY THE HONBLE SUP REME COURT REPORTED IN (2020) 117 TAXMANN.COM 244 (SC). 6. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESEN TATIVE (DR) SUPPORTS THE ORDER PASSED BY THE LD. CIT(A) AND FILES A WRIT TEN SUBMISSION RELYING ON THE DECISION IN PCIT V. PARAMOUNT COMMUNICATION (P.) LTD. (2017-TIOL-253-SC-IT), PCIT V. PARAMOUNT COMMUNICATION (P.) LTD. [2017] 392 ITR 444 (DELHI), INDU LATA RANGWALAV. DCIT [2016] 384 ITR 337 (DELHI), THAKORBHAI MAGANBHAI PATEL V. ITO [2017] 245 TAXMAN (SC), THAKOR BHAI MAGANBHAI PATEL V. ITO [2017] 392 ITR 444 (DELHI), ARAVALI INFRAPOWER LTD. V. DCIT (2017-TIOL-42-SC- IT), ARAVALI INFRAPOWER LTD. V. DCIT [2017] 390 ITR 456 (DELHI), YOGENDRAKUMAR GUPTA [2014] 227 TAXMAN 374 (SC), RAYMOND WOOLEN MILLS LTD. V. ITO AND OTHER (236 ITR 34), R.K. MALHOTRA ITO V. KASTURBHAI LALBHAI [1997] 109 ITR 537 (SC), CIT V. P.V.S. BEEDIES (P.) LTD. [1999] 237 ITR 13 (SC), ACIT V. RAJESH JHAVERI STOCK BROKERS (P.) LTD. [2007] 291 ITR 500 (SC), YUVRAJ V. UNION OF INDIA [315 ITR 84] (SC) AND ANKIT FINANCIAL SERVICES LTD. V. DCIT [2017] 78 TAXMANN.COM 58 (GUJARAT). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISIONS ARE GIVEN INFRA . ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 8 WE FIND THAT THE ASSESSEE HAD FILED BEFORE THE AO A WRITTEN SUBMISSION DATED 29.11.2010 CONTAINING INTER ALIA A DETAILED NOTE ON EXEMPTION CLAIMED U/S 54F AND 54EC ALONG WITH SUPPORTING DOCUMENTS. T HE SAID WRITTEN SUBMISSION WAS FILED IN THE OFFICE OF THE AO ON 29. 11.2010 AS EVIDENT FROM THE STAMP MARK. IT IS NOT DISPUTED BY THE LD. DR. THE S AID NOTE FILED BY THE ASSESSEE READS AS UNDER : FACTS ABOUT THE CASE THE ASSESSEE HAS EARNED CAPITAL GAINS OF RS.64,30,5 9,971/- DURING THE FINANCIAL YEAR 2007-08 FROM SALE OF SHARES I.E. LONG TERM CAPITAL GAINS OTHER THAN SALE OF A RESIDENTIAL HOUSE. THE WORKING OF THE SAME IS ENCLO SED HEREWITH FOR YOUR READY REFERENCE. FURTHER, THE ASSESSEE HAS DEPOSITED RS.47,30,812/- IN THE CAPITAL GAINS ACCOUNT SCHEME ON 15-09-2008. THE ASSESSEE HAS PURCHASED A RESIDENTIAL PROPERTY AT ALIBAUG WORTH RS.5,75,00,000/- ON 12 TH JUNE, 2009 I.E. WITHIN 2 YEARS OF THE CAPITAL GAINS INCURRED. THE COPY OF THE AGREEMENT IS ENCLOSED HEREWITH FOR YOUR READY REFERENCE. ALSO THE DETAILS OF THE PAYMENT MADE FOR ACQUIRING THE SAID PROPERTY IS ENCLOSED HEREWITH. THUS, AS PER THE PROVISIONS OF SECTION 54F OF THE I NCOME TAX ACT, 1961, OUR CLIENT HAS RIGHTLY INVESTED AND PURCHASED A RESIDENTIAL PROPER TY WITHIN THE PRESCRIBED TIME I.E. 2 YEARS FROM THE TRANSFER DATE. THUS, OUR CLIENT IS ELIGIBLE FOR EXEMPTION UNDER SE CTION 54F OF THE ACT. 7.1 WE FURTHER NOTICE THAT AS PER THE PURCHASE AGRE EMENT OF THE RESIDENTIAL PROPERTY AND INDEX NO. II, WHICH WERE FILED BEFORE THE AO DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS, THE AGREEMENT IS F OR THE PURCHASE OF ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 9 RESIDENTIAL PROPERTY COMPRISING OF 6700 SQ. FT. AND 400 SQ. FT. AT PAGE 3 OF THE SAID PURCHASE AGREEMENT DATED 12.06.2009 IT IS STAT ED THAT :- AND WHEREAS THE VENDOR IS ENTITLED TO A PORTION OF THE SAID PROPERTY BEARING SURVEY NO. 465/1 ADMEASURING 0-63-1 H.A. AND SURVEY NO. 46 5/2 ADMEASURING 0-63-2 (HEREINAFTER REFERRED TO AS THE SAID PLOT) ALONG WITH RESIDENTIAL HOUSE (HEREAFTER REFERRED TO AS THE SAID STRUCTURE) . (HEREINAFTE R THE SAID STRUCTURE AND THE SAID PLOT ARE COLLECTIVELY REFERRED TO AS THE SAID PREMISES FURTHER, AT PAGE 3 OF THE SAID PURCHASE AGREEMENT I T IS MENTIONED THAT : NOW THIS INDETURE WITHNESSTH THAT IN CONSIDERATION OF THE SUM OF RS.5,75,00,000/- (RUPEES FIVE CRORES SEVENTY FIVE L AKHS ONLY) PAID BY THE PURCHASER TO THE VENDOR, THE VENDOR DO HEREBY GRANT, RELEASE, CONVEY, SELL, TRANSFER, ASSIGN AND ASSURE UNTO THE PURCHASER FOREVER THE SAID PREMISES VIZ. RESIDENTIAL HOUSE ALONG WITH THE LAND APPURTENANT THERETO (I.E. THE SAID PLOT) B EING A PORTION OF THE SAID PROPERTY BEARING SURVEY NO 465/1 ADMEASURING 0-63-1 H.A AND SURVEY NO. 465/2 ADMEASURING 0-63-2 SITUATE AT VILLAGE ZIRAD, TALUKA ALIBAG, DISTRICT RAIGAD MORE PARTICULARLY DESCRIBED IN THE THIRD SCHEDULE HEREUN DER WRITTEN AND AS SHOWN IN RED COLOR BOUNDARY LINE ON THE PLAN ANNEXED AS ANNEXURE 'A' HERETO AND TOGETHER WITH ALL STRUCTURES, HOUSES BEARING HOUSE NO. 1057 OF 6700 SQ. FEET AND HOUSE NO. 1059 OF 400 SQ. FEET, YARDS, COMPOUND, SEWER, FENCE S, TREES, DRAINS, WAYS, PATHS, PASSAGES, COMMON GULLIES, WELLS, WATER, WATER COURS ES, LIGHTS, LIBERTIES, PRIVILEGES, EASEMENTS, PROFIT.; ADVANTAGES, RIGHTS, MEMBER AND APPURTENANCES WHATSOEVER TO THE SAID PREMISES OR ANY PART THEREOF BELONGING OR IN A NYWISE APPERTAINING OR USUALLY HELD, USED, OCCUPIED, OR ENJOYED THEREWITH OR REPUT ED OR KNOWN AS PART OR MEMBER THEREOF OR TO BELONG OR BE APPURTENANT THERETO (HER EINAFTER COLLECTIVELY REFERRED TO AS THE SAID PREMISES) 7.2 IN THE BOARD RESOLUTION OF TOPNOTCH REALTY P. L TD. DATED 22.09.2007, IT IS MENTIONED THAT : ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 10 RESOLVED THAT TO CONSTRUCT AND SALE THE RESIDENTIA L HOUSE ALONG-WITH LAND AGGREGATELY ADMEASURING 0-63-1 H.A. BEARING SURVEY NO.465(PART-1) AND 0-63-2 H.A BEARING SURVEY NO:465 (PART-2) SITUATED AT VILLAGE ZHIRAD, TALUKA ALIBAUG, DISTRICT RAIGAD IN THE REGISTRATION DISTRICT OF RAIGAD AND S UB-DISTRICT OF ALIBAUG FOR THE VALUE OF RS.5,75,00,000/-(RUPEES FIVE CRORES SEVENTY FIVE LAKHS) TO MR. JAGDISH THAKERSEY. 7.3 THE DOCUMENTS REFERRED HEREINABOVE AT PARA 7, 7 .1 AND 7.2 HAD BEEN FILED BEFORE THE AO VIDE LETTER DATED 29.11.2010 RECEIVED IN THE OFFICE OF THE AO ON THE SAME DATE. FROM THE ABOVE NARRATION OF FACTS, IT IS EVIDENT T HAT THE APPELLANT HAD PURCHASED A RESIDENTIAL PROPERTY I.E. HOUSE NO. 105 7 OF 6700 SQ. FT. AND HOUSE NO. 1059 OF 400 SQ. FT. ALONG WITH THE LAND APPURTE NANT THERETO AND CLAIMED DEDUCTION U/S 54F AGAINST THE SALE OF LONG TERM SHA RES. 7.4 IN PADMASUNDRA RAO V. STATE OF TN 255 ITR 147 (SC ) , THE CONSTITUTION BENCH OF THE HONBLE SUPREME COURT HAS HELD THAT RE LIANCE SHOULD NOT BE PLACED ON A DECISION WITHOUT DISCUSSING HOW THE FAC TUAL SITUATION FITS IN WITH THE FACTUAL SITUATION OF THE DECISION ON WHICH RELI ANCE IS PLACED. ALSO IT WAS HELD THEREIN THAT CIRCUMSTANTIAL FLEXIBILITY, E.G. ONE ADDITIONAL OR DIFFERENT FACT, MAY MAKE A WORLD OF DIFFERENCE BETWEEN CONCLUSIONS IN TWO CASES. HAVING EXAMINED THE CASE LAWS RELIED ON BY THE LD. DR MENTIONED AT PARA 6 HEREINABOVE, WE FIND THAT IN VIEW OF THE FAC TS DELINEATED AT PARA 7, 7.1, 7.2 & 7.3 ABOVE, THE INSTANT CASE IS DISTINGUISHABL E FROM THE DECISIONS RELIED UPON. ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 11 7.5 LET US NOW TURN TO THE ENUNCIATION OF LAW ON TH E ABOVE MATTER. IN STATE BANK OF INDIA (SUPRA), THE REGULAR ASSESSMENT FOR THE ASSESSMENT YEARS 2013- 14 AND 2014-15 WERE COMPLETED U/S 143(3) OF THE ACT . THEREAFTER, THE AO ISSUED NOTICES U/S 148 WITHIN A PERIOD OF FOUR YEAR S FROM THE END OF THE RELEVANT ASSESSMENT YEAR ON THE GROUND THAT DEDUCTI ON ALLOWED TO IT IN VALUE OF ITS ADVANCES ON ACCOUNT OF CHANGE IN CONTRACTUAL TERMS, CONSEQUENT TO RESTRUCTURING OF ASSETS, WAS OF CONTINGENT NATURE A ND DID NOT QUALIFY TO BE ALLOWED AS A LOSS/DEDUCTIBLE EXPENDITURE AND, THUS, INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. IN APPEAL, THE HONBLE BOMB AY HIGH COURT HELD THAT SINCE SAID CLAIM WAS CONSIDERED DURING ASSESSMENT P ROCEEDINGS AND ACCEPTED FOR BOTH YEARS, IT WAS A CLEAR CASE OF A CHANGE OF OPINION AND, THUS, REASSESSMENT NOTICES WERE WITHOUT JURISDICTION. IN MARICO LTD . (SUPRA), WHILE COMPUTING BOOK PROFIT U/S 115JB, T HE ASSESSEE CLAIMED DEDUCTION OF DEPRECIATION OF RS.47 .04 CRORES ON ACCOUNT OF AMORTIZATION OF BRAND VALUE BEING INTANGIBLE. THE A O PASSED AN ORDER U/S 143(3), ACCEPTING THE ASSESSEES CLAIM FOR ALLOWING DEPRECIATION FOR AMORTIZATION OF BRAND VALUE TO DETERMINE BOOK PROFI TS U/S 115JB. HOWEVER, LATER ON THE AO ISSUED NOTICE U/S 148 TO REOPEN THE ASSESSMENT ON THE GROUND THAT INCOME AMOUNTING TO RS.47.04 CRORES CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. THE HONBLE BOMBAY HIGH COURT IN A WRIT PETITION FILED BY THE ASSESSEE HELD THAT : IT IS UNDISPUTED POSITION THAT QUERY WAS RAISED ON THE VERY ISSUE OF REOPENING DURING REGULAR ASSESSMENT PROCEEDINGS. THE PARTIES HAVE RE SPONDED TO IT AND THE ASSESSMENT ORDER MAKES NO REFERENCE TO THE SAID ISSUE AT ALL. HOWEVER, ONCE A QUERY HAS BEEN RAISED BY THE ASSESSING OFFICER DURING THE ASSESSME NT PROCEEDINGS AND THE ASSESSEE ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 12 HAS RESPONDED TO THAT QUERY, IT WOULD NECESSARILY F OLLOW, THAT THE ASSESSING OFFICER HAS ACCEPTED THE ASSESSEE'S SUBMISSIONS, SO AS TO N OT DEAL WITH THAT ISSUE IN THE ASSESSMENT ORDER. THE FURTHER SUBMISSION OF THE REVENUE WAS THAT IN T HE ABSENCE OF THE ASSESSING OFFICER ADJUDICATING UPON THE ISSUE, IT CANNOT BE S AID THAT THE ASSESSING OFFICER HAD FORMED AN OPINION DURING THE REGULAR ASSESSMENT PRO CEEDINGS LEADING TO THE ASSESSMENT ORDER. AN ADJUDICATION WOULD ONLY BE ON SUCH ISSUE WHERE THE ASSESSEE'S SUBMISSIONS ARE NOT ACCEPTABLE TO THE REVENUE, THEN THE OCCASION TO DECIDE A LIS WOULD ARISE I.E. ADJUDICATION. HOWEVER, WHERE THE R EVENUE ACCEPTS THE VIEW PROPOUNDED BY THE ASSESSEE IN RESPONSE TO THE REVEN UE'S QUERY, THE ASSESSING OFFICER HAS CERTAINLY TO FORM AN OPINION WHETHER OR NOT THE STAND TAKEN BY THE ASSESSEE IS ACCEPTABLE. THEREFORE, IT MUST FOLLOW T HAT WHERE QUERIES HAVE BEEN RAISED DURING THE ASSESSMENT PROCEEDINGS AND THE ASSESSEE HAS RESPONDED TO THE SAME, THEN THE NON-DISCUSSION OF THE SAME OR NON-REJECTION OF THE RESPONSE OF THE ASSESSEE, WOULD NECESSARILY MEAN THAT THE ASSESSING OFFICER H AS FORMED AN OPINION ACCEPTING THE VIEW OF THE ASSESSEE. THUS, AN OPINION IS FORME D DURING THE REGULAR ASSESSMENT PROCEEDINGS, AND IT BARS THE ASSESSING OFFICER TO R EOPEN THE SAME ONLY ON ACCOUNT OF A DIFFERENT VIEW. THUS, THE REASONS IN SUPPORT OF THE IMPUGNED NOTICE IS THE VERY ISSUE IN RESPECT OF WHICH THE ASSESSING OFFICER HAS RAISED THE QUERY DU RING THE ORIGINAL ASSESSMENT PROCEEDINGS AND THE ASSESSEE HAD RESPONDED TO THE S AME BY TWO LETTERS JUSTIFYING ITS STAND. THE NON-REJECTION OF THE EXPLANATION IN THE ASSESSMENT ORDER WOULD AMOUNT TO THE ASSESSING OFFICER ACCEPTING THE VIEW OF THE ASSESSEE, THUS, TAKING A VIEW/FORMING AN OPINION. THEREFORE, THE REASONS IN SUPPORT OF THE IMPUGNED NOTICE TO PROCEED ON A MERE CHANGE OF OPINION THEREFORE WO ULD BE COMPLETELY WITHOUT JURISDICTION IN THE PRESENT FACTS. ACCORDINGLY, THE IMPUGNED NOTICE IS TO BE QUASHED AND SET ASIDE. ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 13 THE SLP FILED BY THE REVENUE AGAINST THE ABOVE ORD ER HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT AS REPORTED IN (2020) 117 TAXMANN.COM 244 (SC). 7.6 IT IS WELL SETTLED THAT MERE FRESH APPLICATION OF MIND TO THE SAME SET OF FACTS OR MERE CHANGE OF OPINION DOES NOT CONFER JUR ISDICTION EVEN UNDER THE POST-1989 SECTION 147. THE CONSISTENT VIEW IS THAT EVEN AFTER AMENDMENT OF SECTION 147 (W.E.F. 01.04.1989) MERE CHANGE OF OPIN ION DOES NOT CONFER JURISDICTION ON THE ASSESSING OFFICER TO INITIATE P ROCEEDINGS FOR RE-ASSESSMENT MERELY BY RESORTING TO EXPLANATION 1 TO THAT SECTION ON THE BASIS OF CHANGE OF OPINION. WHERE, ON THE SAME MATERIAL, THE SUCCEEDIN G OFFICER WANTS TO TAKE A DIFFERENT VIEW THAN TAKEN BY THE PREDECESSOR ASSESS ING OFFICER AND WANTS TO TAKE ACTION U/S 147, SUCH ACTION CANNOT BE SUSTAINE D BECAUSE THE VIEW TAKEN BY THE SUBSEQUENT OFFICER IS NOTHING BUT A CHANGE O F OPINION. THE HONBLE SUPREME COURT, WHILE APPROVING REPORTED IN 320 ITR 561, THE FULL BENCH DECISION OF THE DELHI HIGH COURT IN CIT V. KELVINATOR OF INDIA LTD . (2002) 256 ITR 1, OBSERVED THAT : AFTER THE AMENDING ACT, 1989, SECTION 147 READS AS UNDER: INCOME ESCAPING ASSESSMENT . 147. IF THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YE AR, HE MAY, SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 153, ASSESS OR REASSE SS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED AS SESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF T HE PROCEEDINGS UNDER THIS SECTION, OR RECOMPUTE THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE, AS THE CASE MAY BE, FOR THE ASSESSMENT Y EAR CONCERNED (HEREAFTER IN ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 14 THIS SECTION AND IN SECTIONS 148 TO 153 REFERRED TO AS THE RELEVANT ASSESSMENT YEAR). ON GOING THROUGH THE CHANGES, QUOTED ABOVE, MADE TO SECTION 147 OF THE ACT, WE FIND THAT, PRIOR TO DIRECT TAX LAWS (AMENDMENT) ACT, 198 7, RE-OPENING COULD BE DONE UNDER ABOVE TWO CONDITIONS AND FULFILLMENT OF THE S AID CONDITIONS ALONE CONFERRED JURISDICTION ON THE ASSESSING OFFICER TO MAKE A BAC K ASSESSMENT, BUT IN SECTION 147 OF THE ACT [WITH EFFECT FROM 1 ST APRIL, 1989], THEY ARE GIVEN A GO-BY AND ONLY ONE CONDITION HAS REMAINED, VIZ., THAT WHERE THE ASSESS ING OFFICER HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT, CONFERS JURISDI CTION TO RE-OPEN THE ASSESSMENT. THEREFORE, POST-1ST APRIL, 1989, POWER TO RE-OPEN I S MUCH WIDER. HOWEVER, ONE NEEDS TO GIVE A SCHEMATIC INTERPRETATION TO THE WORDS 'RE ASON 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 OP INION', WHICH CANNOT BE PER SE REASON TO RE-OPEN. WE MUST ALSO KEEP IN MIND THE CO NCEPTUAL DIFFERENCE BETWEEN POWER TO REVIEW AND POWER TO REASSESS. THE ASSESSIN G OFFICER HAS NO POWER TO REVIEW; HE HAS THE POWER TO RE-ASSESS. BUT REASSESS MENT HAS TO BE BASED ON FULFILLMENT OF CERTAIN PRE-CONDITION AND IF THE CON CEPT OF 'CHANGE OF OPINION' IS REMOVED, AS CONTENDED ON BEHALF OF THE DEPARTMENT, THEN, IN THE GARB OF RE-OPENING THE ASSESSMENT, REVIEW WOULD TAKE PLACE. ONE MUST T REAT THE CONCEPT OF 'CHANGE OF OPINION' AS AN IN-BUILT TEST TO CHECK ABUSE OF POWE R BY THE ASSESSING OFFICER. HENCE, AFTER 1ST APRIL, 1989, ASSESSING OFFICER HAS POWER TO RE-OPEN, PROVIDED THERE IS 'TANGIBLE MATERIAL' TO COME TO THE CONCLUSION THAT THERE IS ESCAPEMENT OF INCOME FROM ASSESSMENT. REASONS MUST HAVE A LIVE LINK WITH THE FORMATION OF THE BELIEF. THUS MERE CHANGE OF OPINION BY ASSESSING OFFICER C ANNOT BE A GROUND FOR REASSESSMENT AND THAT AMENDMENT OF SECTION 147 W.E. F. 01.04.1989 HAS NOT ALTERED THE POSITION- THE ASSESSING OFFICER MUST HA VE REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT ; THE ASSESSING OFFIC ER DOES NOT HAVE THE POWER OF REVIEW ON THE SAME SET OF FACTS AND LAW. ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 15 7.7 WHAT IS MEANT BY TRUE AND FULL DISCLOSURE ? LAW IN THIS REGARD HAS BEEN SUCCINTLY LAID DOWN BY A CONSTITUTION BENCH OF THE HONBLE SUPREME COURT IN CALCUTTA DISCOUNT CO. LTD. V. ITO (1961) 41 ITR 191 (SC), WHEREIN IT IS HELD THAT : (8)...THE WORDS USED ARE 'OMISSION OR FAILURE TO D ISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT YEAR'. IT POSTULATES A DUTY ON EVERY ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS NECESSARY FOR HIS ASSESSMENT. WHAT FACTS ARE MATERIAL, AND NECESSARY FOR ASSESSME NT WILL DIFFER FROM CASE TO CASE. IN EVERY ASSESSMENT PROCEEDING, THE ASSESSING AUTHORIT Y WILL, FOR THE PURPOSE OF COMPUTING OR DETERMINING THE PROPER TAX DUE FROM AN ASSESSEE, REQUIRE TO KNOW ALL THE FACTS WHICH HELP HIM IN COMING TO THE CORRECT C ONCLUSION. FROM THE PRIMARY FACTS IN HIS POSSESSION, WHETHER ON DISCLOSURE BY THE ASS ESSEE, OR DISCOVERED BY HIM ON THE BASIS OF THE FACTS DISCLOSED, OR OTHERWISE THE AS SESSING AUTHORITY HAS TO DRAW INFERENCES AS REGARDS CERTAIN OTHER FACTS; AND ULTI MATELY, FROM THE PRIMARY FACTS AND THE FURTHER FACTS INFERRED FROM THEM, THE AUTHORITY HAS TO DRAW THE PROPER LEGAL INFERENCES, AND ASCERTAIN ON A CORRECT INTERPRETATI ON OF THE TAXING ENACTMENT, THE PROPER TAX LEVIABLE. THUS, WHEN A QUESTION ARISES W HETHER CERTAIN INCOME RECEIVED BY AN ASSESSEE IS CAPITAL RECEIPT, OR REVENUE RECEIPT, THE ASSESSING AUTHORITY HAS TO FIND OUT WHAT PRIMARY FACTS HAVE BEEN PROVED, WHAT OTHER FACTS CAN BE INFERRED FROM THEM, AND TAKING ALL THESE TOGETHER, TO DECIDE WHAT THE L EGAL INFERENCE SHOULD BE. (9) THERE CAN BE NO DOUBT THAT THE DUTY OF DISCLOSI NG ALL THE PRIMARY FACTS RELEVANT TO THE DECISION OF THE QUESTION BEFORE THE ASSESSING A UTHORITY LIES ON THE ASSESSEE. TO MEET A POSSIBLE CONTENTION THAT WHEN SOME ACCOUNT B OOKS OR OTHER EVIDENCE HAS BEEN PRODUCED, THERE IS NO DUTY ON THE ASSESSEE TO DISCLOSE FURTHER FACTS, WHICH ON DUE DILIGENCE, THE INCOME- TAX OFFICER MIGHT HAVE D ISCOVERED, THE LEGISLATURE HAS PUT IN THE EXPLANATION , WHICH HAS BEEN SET OUT ABOVE. IN VIEW OF THE EXPLANATION , IT WILL NOT BE OPEN TO THE ASSESSEE TO SAY, FOR EXAMPLE ' I HAVE PRODUCED THE ACCOUNT BOOKS AND THE DOCUMENTS: YOU, THE ASSESSING OFFICER EXAMINE THEM, AND FIND OUT THE FACTS NECESSARY FOR YOUR PURPOSE: MY DUTY IS DONE W ITH DISCLOSING THESE ACCOUNT- ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 16 BOOKS AND THE DOCUMENTS.' HIS OMISSION TO BRING TO THE ASSESSING AUTHORITY'S ATTENTION THESE PARTICULAR ITEMS IN THE ACCOUNT BOO KS, OR THE PARTICULAR PORTIONS OF THE DOCUMENTS, WHICH ARE RELEVANT, WILL AMOUNT TO 'OMIS SION TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT.' NOR W ILL HE BE ABLE TO CONTEND SUCCESSFULLY THAT BY DISCLOSING CERTAIN EVIDENCE, H E SHOULD BE DEEMED TO HAVE DISCLOSED OTHER EVIDENCE, WHICH MIGHT HAVE BEEN DIS COVERED BY THE ASSESSING AUTHORITY IF HE HAD PURSUED INVESTIGATION ON THE BA SIS OF WHAT HAS BEEN DISCLOSED. THE EXPLANATION TO THE SECTION, GIVES A QUIETUS TO ALL SUCH CONTEN TIONS; AND THE POSITION REMAINS THAT SO FAR AS PRIMARY FACTS ARE CONCERNED, IT IS THE ASSESSEE'S DUTY TO DISCLOSE ALL OF THEM INCLUDING PARTICULAR ENTRIES IN ACCOU NT BOOKS, PARTICULAR PORTIONS OF DOCUMENTS AND DOCUMENTS, AND OTHER EVIDENCE, WHICH COULD HAVE BEEN DISCOVERED BY THE ASSESSING AUTHORITY, FROM THE DOCUMENTS AND OTH ER EVIDENCE DISCLOSED. (10) DOES THE DUTY HOWEVER EXTEND BEYOND THE FULL A ND TRUTHFUL DISCLOSURE OF ALL PRIMARY FACTS? IN OUR OPINION, THE ANSWER TO THIS Q UESTION MUST BE IN THE NEGATIVE. ONCE ALL THE PRIMARY FACTS ARE BEFORE THE ASSESSING AUTHORITY, HE REQUIRES NO FURTHER ASSISTANCE BY WAY OF DISCLOSURE. IT IS FOR HIM TO D ECIDE WHAT INFERENCES OF FACTS CAN BE REASONABLY DRAWN AND WHAT LEGAL INFERENCES HAVE ULT IMATELY TO BE DRAWN. IT IS NOT FOR SOMEBODY ELSE FAR LESS THE ASSESSEE TO TELL THE ASSESSING AUTHORITY WHAT INFERENCES WHETHER OF FACTS OR LAW SHOULD BE DRAW N. INDEED, WHEN IT IS REMEMBERED THAT PEOPLE OFTEN DIFFER AS REGARDS WHAT INFERENCES SHOULD BE DRAWN FROM GIVEN FACTS, IT WILL BE MEANINGLESS TO DEMAND THAT THE ASSESSEE MUST DISCLOSE WHAT INFERENCES WHETHER OF FACTS OR LAW HE WOUL D DRAW FROM THE PRIMARY FACTS. (11) IF FROM PRIMARY FACTS MORE INFERENCES THAN ONE COULD BE DRAWN, IT WOULD NOT BE POSSIBLE TO SAY THAT THE ASSESSEE SHOULD HAVE DRAWN ANY PARTICULAR INFERENCE AND COMMUNICATED IT TO THE ASSESSING AUTHORITY. HOW COU LD AN ASSESSEE BE CHARGED WITH FAILURE TO COMMUNICATE AN INFERENCE, WHICH HE MIGHT OR MIGHT NOT HAVE DRAWN? 7.8 THE ABOVE DECISION OF THE CONSTITUTION BENCH CL EARLY TELLS US THAT IT IS THE DUTY OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY AL L MATERIAL FACTS WHICH IS TERMED ITA NO. 5045/MUM/2017 SHRI JAGDISH U. 17 AS PRIMARY FACTS. NON-DISCLOSURE OF OTHER FACTS WHI CH MAY BE TERMED AS SECONDARY FACTS IS NOT NECESSARY. IN OUR CONSIDERED VIEW, THE ASSESSEE IN THE INSTAN T CASE DISCLOSED ALL THE PRIMARY FACTS NECESSARY FOR ASSESSMENT OF ITS CASE TO THE ASSESSING OFFICER AS DELINEATED AT PARA 7, 7.1, 7.2, & 7.3 HEREIN ABOVE. THUS A MERE CHANGE OF OPINION BY THE AO IN THE INSTANT CASE CANNOT BE A G ROUND FOR REASSESSMENT. 7.9 IN VIEW OF THE ABOVE FACTUAL SCENARIO AND POSIT ION OF LAW, WE HEREBY QUASH THE REOPENING U/S 147 MADE BY THE AO. SINCE, THE JURISDICTIONAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE, THE 5 TH GROUND OF APPEAL BECOMES ACADEMIC IN NATURE 8. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/01/2021. SD/- SD/- (VIKAS AWASTHY) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 11/01/2021 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSISTANT REGISTRAR) ITAT, MUMBAI