Smt. Nivvaniben D. Sandesara, Ahmedabad V. The Income Tax Officer, Ward-13(4), Now Ward-7(2)(4), Ahmedabad

ITA 778/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7867 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 30-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Keywords: Reopening of assessment; Unexplained expenditure; Salary income; Cost of acquisition; Tangible material; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 54F; 142(1); 234B; 115JB; 69; 148; 54

Judgement Text

, ,LK ,LK,LK ,LK- -- -,E ,E,E ,E- -- -LH LHLH LH- -- - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD LOZJH LOZJH LOZJH LOZJH OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN] YS[KK LNL; ,OA ] YS[KK LNL; ,OA ] YS[KK LNL; ,OA ] YS[KK LNL; ,OA EK/KQFERK JKW; EK/KQFERK JKW; EK/KQFERK JKW; EK/KQFERK JKW;] ] ] ] U;KF;D LNL; DS LE{KA U;KF;D LNL; DS LE{KA U;KF;D LNL; DS LE{KA U;KF;D LNL; DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO.778/AHD/2016 ( / ASSESSMENT YEAR : 2008-09) SMT. NIVVANIBEN D. SANDESARA, SHITAL BAUG, OPP: SHANTINAGAR BUS STAND, ASHRAM ROAD, AHMEDABAD 380 009. / VS. THE INCOME TAX OFFICER, OLD WARD 13(4), NEW WARD 7(2)(4), NATURE VIEW BUILDING, ASHRAM ROAD, AHMEDABAD 380 009. ./ ./ PAN/GIR NO. : ACUPS 2499 H ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SMT URVASHI SHODHAN & SHRI TUSHAR VASA, A.R. / RESPONDENT BY : SHRI V. K. SINGH, SR.D.R. / DATE OF HEARING 21/06/2018 !'# / DATE OF PRONOUNCEMENT 13/07/2018 $% / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-7, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)- 7/40/15-16 DATED 04.01.2016 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HE RE-IN-AFTER REFERRED TO AS 'THE ACT') DATED 24.03.2014 RELEVANT TO ASSESSM ENT YEAR (AY) 2008- 09. ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER:- 1. THAT THE LD. CIT(A) AND LD. ITO, AHMEDABAD HAVE ERRED IN LAW AND ON FACTS IN CONFIRMING ADDITION OF RS.11,24,710 /-, NOT GRANTING DEDUCTION U/S.54F OF THE I.T. ACT BY ORDER U/S.143(3) R/W/S/ 147 OF THE ACT. 2. THE LD. CIT(A) ERRED IN CONFIRMING ADDITION ON THE GROUND OF CONSTRUCTION NOT MADE AND NOT ON THE GROUND OF PURC HASE OF THE LAND, WHICH WAS NOT THE BASIS OF RE-OPENING OF ASSE SSMENT PROCEEDINGS. THE APPELLANT HAD MADE INVESTMENT IN P URCHASE OF LAND AND INVESTMENT INTO CONSTRUCTION OF BUILDING E NTITLING HER FOR DEDUCTION U/S.54F ON UTILIZING SALE PROCEEDS SE T APART TO CONSTRUCT PREMISES AND HAD GIVEN EVIDENCE FOR CONST RUCTION OF PREMISES, HENCE LONG TERM CAPITAL GAIN IS NOT CHARG EABLE TO TAX. 3. THE ORDERS PASSED BY LD. CIT (A) AND THE LD. A.O . ARE WITHOUT APPRECIATING THE FACTS AND BY GROSSLY IGNORING VARI OUS SUBMISSIONS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT WHICH OUGHT TO HAVE BEEN CONSIDERED BEFOR E CONFIRMING THE ADDITION TO THE INCOME AND NOT GRANT ING DEDUCTION U/S.54F OF THE ACT. 4. NOTICE U/S. 148 OF THE ACT ISSUED, AT THE INS TANCE OF THE AUDIT, FOR VERIFICATION OF DETAILS, IS INVALID, THE REOPENING OF THE ASSESSMENT PROCEEDINGS IS BAD IN LAW AND THE PROCEEDINGS ARE V OID AB INITIO. THE APPELLANT HAD GIVEN FULL DETAILS, INFORMATION A ND PARTICULARS OF THE SALE AND PURCHASE OF LANDS, THE INVESTMENT M ADE IN SPECIFIED BONDS AND SPECIFIED BANK ACCOUNT ENTITLIN G DEDUCTION U/S.54EC AND 54F OF THE ACT. THE APPELLANT CONTENDS THAT THERE IS NO ESCAPEMENT OF INCOME. 5. THE APPELLANT CONTENDS THAT THE APPELLANT IS ENT ITLED TO THE BENEFIT OF SECTION 54-F OF THE ACT IN PURSUANCE TO CBDT CIRCULAR NO.607, DATED 18/10/1993, WHICH CLARIFIED THAT COST OF PLOT ACQUIRED BY THE APPELLANT WOULD BE ENTITLED FOR EXE MPTION ALONG WITH COST OF CONSTRUCTION. 6. THE LD. A.O. AND LD. CIT(A) - BOTH HAVE ERRED IN CONSIDERING THAT LONG TERM CAPITAL GAIN WAS CHARGEABLE ON COMPL ETION OF THREE YEARS AND NOT IN ASST. YEAR 2008-09 IN CASE O F NON- FULFILLMENT OF ANY CONDITIONS U/S.54F. 7. THAT THERE BEING NO DEFAULT, THE INTEREST CHARGE D U/S.234A, 234B AND 234C OF THE ACT BE CANCELLED OR REDUCED. 8. THAT THE PENALTY PROCEEDINGS INITIATED U/S.274 R.W.S. 271(1)(C) OF THE ACT MAY BE CANCELLED. ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 3 - 9. IN VIEW OF THE ABOVE AND THAT MAY URGE AT T HE TIME OF HEARING, IT PRAYS - (A) THAT THE REOPENING OF THE ASSESSMENT PROCEEDING S BE HELD TO BE INVALID, THE ASSESSMENT PROCEEDINGS U/S.143(3 ) R.W.S. 147 OF THE ACT BE CANCELLED, ADDITION OF RS.11,34,7 10/- MADE BY THE LD. A.O. CHARGEABLE AS LONG TERM CAPITA L GAIN IN ASST. YEAR 2008-09 BE HELD TO BE INVALID AN D GRANT DEDUCTION U/S.54F OF THE ACT. (B) THAT THE INTEREST CHARGED U/S.234A, 234B AND 23 4C OF THE ACT MAY BE CANCELLED OR REDUCED. (C) THAT THE PENALTY PROCEEDINGS INITIATED U/S.274 R.W.S. 2712(1)(C) OF THE ACT MAY KINDLY BE CANCELLED. (D) SUCH ANY OTHER RELIEF OR DEDUCTION AS THE FACTS AND CIRCUMSTANCES OF THE CASE SO REQUIRES BE GRANTED. 10. THE APPELLATE CRAVES LEAVE TO ADD, ALTER, AMEND MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE TIME OF HEARING. 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE I S AN INDIVIDUAL AND HAS SHOWN HER INCOME AS INCOME FROM SALARY, INTEREST AN D CAPITAL GAIN. THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION FILED HER RETURN OF INCOME DATED 30.03.2010 DISCLOSING THE TOTAL INCOME OF RS.1,28,2 00/-, WHICH WAS PROCESSED U/S 143(1) OF THE ACT. SUBSEQUENTLY THE C ASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY, AND ACCORDINGLY, ASSESSM ENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DATED 29.12.2010 FOR R S. 1,28,200/- ONLY. 4. SUBSEQUENTLY, THE AO FOUND THAT THE INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT AND ACCORDINGLY NOTICE U/S 148 O F THE ACT VIDE DATED 13.03.2013 WAS ISSUED AFTER RECORDING THE REASONS T O BELIEVE FOR INITIATING RE-ASSESSMENT PROCEEDINGS U/S 147 OF THE ACT WHICH ARE DETAILED AS UNDER:- IN THIS CASE, RETURN OF INCOME FOR A.Y. 2008-09 WA S FILED ON 30/03/2010 VIDE RECEIPT NO.117969700300310 IN 1TR F ORM NO.2 SHOWING TOTAL INCOME OF RS.1,28,200/-. ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 4 - 2. IN THE RETURN OF INCOME, ASSESSEE HAS SHOWN LONG TERM CAPITAL GAIN OF RS.63,510/- ON SALE OF 'AHHISHRI CO. OP. HOUSING LT D' ON 10/03/2008 AS UNDER :- SALE CONSIDERATION (10.03.2008) RS.50,00,800 LESS:- INDEXED COST OF ACQUISITION (29063 551/223) RS. 71,810 LONG TERM CAPITAL GAIN RS.49,28,990/- INVESTMENT MADE IN RESIDENTIAL HOUSE U/S 54F RS.11,24,710 DEPOSIT IN SBI CAPITAL GAIN A/C. RS.30,00,000 RS.41,24,710 DEDUCTION U/S 54F (4124710 4928990/5000800) RS.40,65,480 CAPITAL GAIN BONDS U/S 54EC RS. 8,00,000 RS.48,65, 480/- LONG TERM CAPITAL GAIN CLAIMED IN RETURN FILED RS. 63,510/- 3. ON VERIFICATION OF THE CASES RECORDS, IT IS FOUN D THAT THE FOLLOWING POINTS NEED VERIFICATION:- (I) ASSESSEE HAS SHOWN AS INVESTMENT MADE IN RESI DENTIAL HOUSE U/S.54F OF RS.11,24,710/- WHEREAS THE ASSESSE E HAS PURCHASED AGRICULTURAL LAND ON 10/7/2008 AGAINST TH E SALE OF NON-AGRICULTURE LAND (I.E. 'ABHISHRI CO. OP. HOU SING LTD' ON 10/03/2008). AS PER ITS DETAILS ASSESSEE HA S NOT PURCHASED ANY OTHER PROPERTY IN THE PRECEDING YEAR I.E. 2009-10. (II) ASSESSEE HAS DEPOSITED RS.30 LAKHS IN SBI CAP ITAL GAIN ACCOUNT FOR THE PURPOSE OF CAPITAL GAIN BE RE-INVES TED INTO NEW PROPERTY EITHER TO BE CONSTRUCTED WITHIN 3 YEAR S OR TO BE PURCHASED NEW HOUSE WITHIN TWO YEARS. THIS ISSUE IS ALSO TO BE VERIFIED. (III) ASSESSEE HAS INVESTED RS.8 LAKHS IN CAPITAL GAIN BONDS ON 30/09/2008 AND CLAIMED DEDUCTION UNDER SECTION 54EC OF THE ACT. AS PER THIS SECTION, THE INVESTMENT IS TO BE MADE WITHIN 6 MONTHS FROM THE TRANSFER OF IMMOVABLE PROP ERTY. BUT ASSESSEE HAS INVESTED RS.8 LAKHS IN CAPITAL GAI N BONDS WHICH IS BEYOND THE TIME LIMIT FOR CLAIMING EXEMPTION U/S.54EC. 4. IN VIEW OF THE ABOVE AND ON VERIFICATION OF THE RETURN OF INCOME FILED, THE ASSESSEE HAS NOT DISCLOSED THE FULL MATE RIAL FACTS IN HER ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 5 - RETURN OF INCOME / WRONGLY CLAIMED EXEMPTION FOR RE DUCING HERS TAX LIABILITY. I HAVE, THEREFORE, REASONS TO BELIEV E THAT INCOME TO THE EXTENT OF RS.19,24,710/- HAS ESCAPED ASSESSMENT DUE TO CONCEALMENT OF MATERIAL FACTS IN THE RETURN OF INCO ME FILED FOR A.Y. 2008-09. THE ASSESSEE AGAINST THE INITIATION OF REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT SUBMITTED THAT ALL THE DETAILS RELATED TO C APITAL GAIN AND ITS EXEMPTION WERE FILED BEFORE THE AO AT THE TIME OF O RIGINAL ASSESSMENT PROCEEDINGS. ACCORDINGLY, THE EXEMPTION U/S 54F/ 54 EC WERE ALLOWED IN THE ORIGINAL ASSESSMENT PROCEEDINGS AFTER DUE VERIF ICATION BY THE AO. THEREFORE THE REOPENING FOR THE REASSESSMENT UNDER SECTION 147 OF THE ACT IS BAD IN LAW. HOWEVER, THE AO DISREGARDED THE SUBMISSION OF THE ASSESSEE AND HELD THE PROCEEDINGS INITIATED U/S 147 OF THE ACT VALID AS PER THE PROVISION OF LAW. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFO RE THE LD. CIT(A). BEFORE THE LD. CIT(A) ASSESSEE SUBMITTED THAT ALL T HE NECESSARY DETAILS WERE DULY FILED TO THE AO AT THE TIME OF ORIGINAL A SSESSMENT FRAMED U/S 143(3) OF THE ACT. THEREFORE ON THE SAME SET OF FAC TS, THE AO CANNOT INITIATE THE PROCEEDINGS U/S 147 OF THE ACT. HOWEVE R, THE LD. CIT(A) REJECTED THE CLAIM OF THE ASSESSEE BY OBSERVING AS UNDER:- 6.2 1 HAVE CONSIDERED THE ASSESSMENT ORDER AND TH E SUBMISSIONS MADE BY THE APPELLANT. AS DISCUSSED ABOVE, THE AO D ISALLOWED THE APPELLANT'S CLAIM U/S.54F OF THE ACT AFTER DULY DIS CUSSING THE MATTER AT LENGTH IN THE ASSESSMENT ORDER ON PAGES 3 TO 11. TH E APPELLANT CONTENDED THAT THE ACTION OF THE AO AMOUNTED TO CHA NGE OF OPINION AS ALL THE FACTS HAD BEEN DISCUSSED BEFORE THE AO AT T HE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS. A PERUSAL OF THE SUBMISSION S MADE BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS SHOWS TH AT NO SUBMISSION ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 6 - WAS MADE IN RESPECT OF DEDUCTION U/S. 54F AND IN FA CT NO QUERY IN THIS REGARD HAD BEEN RAISED BY THE AO IN THE QUESTIONNAI RE ANNEXED TO NOTICE U/S. 142(1) OF THE I.T. ACT. A PERUSAL OF TH E ORIGINAL ORDER U/S. 143(3) ALSO SHOWS THAT THE ISSUE UNDER QUESTION NOW WAS NOT DISCUSSED AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS. THE HON'BLE SUPREME COURT IN THE CASE OF KALYANJI MAVJI & CO VS CIT 102 ITR 287 HAS ALSO HELD THAT WHEN THERE IS NO DISCUSSION ON THE ISSUE IN THE ASSESSMENT ORDER AND NO DETAILS WERE CALLED FOR BY THE AO OR F ILED BY THE ASSESSEE ON THE ISSUE, NO FINDING EITHER POSITIVE OR NEGATIV E CAN BE SAID TO HAVE BEEN ARRIVED AT DURING THE COURSE OF ORIGINAL ASSES SMENT PROCEEDINGS. HENCE THERE IS NO QUESTION OF CHANGE OF OPINION. TH EREFORE, I AM OF THE VIEW THAT THE AO WAS WELL WITHIN HIS RIGHTS TO ISSU E NOTICE U/S. 148 SINCE THE ISSUE OF DEDUCTION U/S. 54F HAD NOT BEEN DISCUS SED DURING THE ORIGINAL ASSESSMENT PROCEEDINGS. IN VIEW OF THE ABO VE FACTS, I AM OF THE OPINION THAT THIS IS NOT A CASE WHICH WOULD CONSTIT UTE CHANGE OF OPINION AND THEREFORE THE ACTION OF THE OF THE AO IS UPHELD . GROUNDS OF APPEAL NOS. 2 AND 3 ARC ACCORDINGLY DISMISSED. BEING AGGRIEVED BY ORDER OF LD. CIT(A) ASSESSEE IS IN THE SECOND APPEAL BEFORE US. 6. THE LD. AR BEFORE US FILED A PAPER BOOK WHICH IS RUNNING FROM PAGES 1 TO 53 AND SUBMITTED THAT THE QUERY WITH REG ARD TO CAPITAL GAIN WAS DULY RAISED BY THE AO IN THE ORIGINAL ASSESSMENT PR OCEEDINGS U/S 142(1) OF THE ACT VIDE DATED 07.12.2010. THE LD. AR DREW O UR ATTENTION ON THE RELEVANT PAGE NO. 8 AND 9 OF THE PAPER BOOK WHERE T HE QUERY FOR THE CAPITAL GAIN CALCULATION WAS RAISED BY THE AO. THE RELEVANT EXTRACT OF THE QUERY IS EXTRACTED BELOW : 4. FURNISH THE WORKING OF CAPITAL GAIN. 5. FURNISH THE COPY OF ALL BANK A/C WHICH ARE HOLDI NG BY YOU. 6. FURNISH THE COPY OF PURCHASE DEED OF IMMOVABLE P ROPERTY OF RS.60 LAKHS. ALONG WITH DETAILS OF SOURCE OF PURCHA SE OF IMMOVABLE PROPERTY. ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 7 - THE LD. AR FURTHER SUBMITTED THAT IN RESPONSE TO TH E QUERY RAISED BY THE AO NECESSARY DETAILS FOR THE CAPITAL GAIN WERE DULY REPLIED. THE NECESSARY DETAILS FOR THE REPLY OF THE SAME ARE PLA CED ON PAGE 10 AND 11 OF THE PAPER BOOK. THE RELEVANT EXTRACT OF THE QUER Y IS EXTRACTED BELOW : 1. DETAILS WORKING OF LONG TERM CAPITAL GAINS 2. XEROX COPIES OF THE FOLLOWING INVESTMENTS MADE F OR THE BENEFIT OF LONG TERM CAPITAL GAIN U/S 54E AND 54EC OF THE IT A CT 1961 ARE SUBMITTED. I. RS.8 LACS INVESTED IN REC RULER ELECTRIFICATION CORPORATION LTD. BONDS (XEROX ENCLOSED). II. RS.30,00,000/- DEPOSITED WITH STATE BANK OF IND IA, LAL DARWAJA BRANCH, AHMEDABAD. III. ASSESSEE HAS INVESTED RS.11,24,710/- FOR PURCH ASE OF LAND IN JULY 2008. XEROX COPY OF DEED IS PLACED ON RECOR D. ON THE OTHER HAND, THE LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSES SEE HAS CHALLENGED THE REASSESSMENT PROCEEDINGS FRAMED U/S 147 OF THE ACT ON THE GROUND THAT THE AO HAS FORMED HIS REASON TO BELIEVE FROM THE SA ME SET OF DOCUMENTS WHICH ARE AVAILABLE AT THE TIME OF ORIGINAL ASSESSM ENT PROCEEDINGS. AS PER THE LD. AR THE REASSESSMENT PROCEEDINGS ON THE SAME SET OF DOCUMENTS AVAILABLE AT THE TIME OF ORIGINAL ASSESSM ENT U/S 143(3) CANNOT BE RELIED. HOWEVER, THE REVENUE AUTHORITIES DISREGA RDED THE CONTENTION OF THE ASSESSEE AND HELD THAT THE REASSESSMENT PROCEED INGS U/S 147 OF THE ACT AS VALID AND IN ACCORDANCE WITH LAW. ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 8 - 8. FROM THE ABOVE FACTS, WE FIND THAT THE AO AT T HE TIME OF ORIGINAL ASSESSMENT HAS DULY VERIFIED THE CAPITAL GAIN AND R ELATED EXEMPTION U/S 54F /54EC AS CLAIMED BY THE ASSESSEE. THE SUBMISSIO N OF ASSESSEE CLEARLY SHOWS THAT THE EXEMPTION UNDER SECTION 54F/ 54EC WAS ALLOWED AFTER DUE VERIFICATION. IN THIS REGARD, WE DISAGRE E WITH THE VIEW TAKEN BY THE LD. CIT(A) AS DETAILED UNDER: 1. THAT NO SUBMISSION WAS MADE BY THE ASSESSEE IN R ESPECT OF EXEMPTION U/S 54F/54EC OF THE ACT DURING THE ORIGIN AL ASSESSMENT PROCEEDINGS. 2. THAT NO QUERY IN THIS REGARD WAS RAISED BY THE A O IN THE QUESTIONNAIRE ANNEXED TO NOTICE U/S 142(1) OF THE I T ACT. 3. THERE WAS NO DISCUSSION ON THE ISSUE OF CAPITAL GAIN AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDING U/S 143(3) O F THE ACT. FROM PRECEDING DISCUSSION, WE NOTE THAT THE RELEVAN T DATA/INFORMATION WAS AVAILABLE BEFORE THE AO AT THE TIME OF ASSESSME NT AND IT WAS DULY VERIFIED. THUS, IT CAN BE INFERRED THAT THE AO IN T HE ORIGINAL ASSESSMENT PROCEEDINGS HAS NOT CONSCIOUSLY MADE THE DISALLOWAN CE OF EXEMPTION. THUS, IN OUR CONSIDERED VIEW, THE INITIATION OF PRO CEEDINGS U/S 147 OF THE ACT ON THE SAME SET OF DOCUMENTS IS NOTHING BUT A M ERE CHANGE OF OPINION. IN THIS REGARD, WE FIND SUPPORT AND GUIDAN CE FROM THE JUDGMENTS OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. REPORTED IN 320 ITR 561 (SC) WHEREIN IT HAS BEEN H ELD AS UNDER:- THE CONCEPT OF ' CHANGE OF OPINION ' ON THE PART OF THE ASSESSING OFFICER TO REOPEN AN ASSESSMENT DOES NOT STAND OBLI TERATED AFTER THE SUBSTITUTION OF SECTION 147 OF THE INCOME-TAX ACT, 1961, BY THE DIRECT ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 9 - TAX LAWS (AMENDMENT) ACTS, 1987 AND 1989. AFTER THE AMENDMENT, THE ASSESSING OFFICER HAS TO HAVE REASON TO BELIEVE THA T INCOME HAS ESCAPED ASSESSMENT, BUT THIS DOES NOT IMPLY THAT THE ASSESS ING OFFICER CAN REOPEN AN ASSESSMENT ON MERE CHANGE OF OPINION. THE CONCEPT OF ((CHANGE OF OPINION ' MUST BE TREATED AS AN IN- BUILT TEST TO CHECK THE ABUSE OF POWER. HENCE AFTER APRIL 1, 1989, THE ASSE SSING OFFICER HAS POWER TO REOPEN AN ASSESSMENT, PROVIDED THERE IS (( TANGIBLE MATERIAL ' TO COME TO THE CONCLUSION THAT THERE WAS ENT INCOME FR OM ASSESSMENT. REASON MUST HAVE A LINK WITH THE FORMATION OF THE B ELIEF 9. FURTHER, RELIANCE IS ALSO PLACED ON THE FOLLOW ING JUDGMENTS WHEREIN IT IS REPEATEDLY HELD THAT RE-OPENING OF AS SESSMENT ON MERE CHANGE OF OPINION IS NOT SUSTAINABLE: (1) M.J. PHARMACEUTICALS LTD VS. CIT (2008) 297 ITR 119 (BOM) (THE ASSESSMENT YEAR 2003- 2004), IN THIS CASE, THE HON'BLE HIGH COURT OBSERVED AS UNDER: ISSUE REGARDING ADDITION OF AMOUNT OF DEFERRED TAX ATION FOR COMPUTING BOOK PROFITS U/S. 115JB HAVING BEEN RAISED BY THE A O AT THE TIME OF ORIGINAL ASSESSMENT U/S. 143(3) AND NO ADDITION HAV ING BEEN MADE BY AO ON THE ACCOUNT ON BEING SATISFIED WITH THE EXPLA NATION OF THE ASSESSEE REOPENING OF ASSESSMENT ON THE VERY SAME I SSUE SUFFERED FROM CHANGE OF OPINION IN THE ABSENCE OF ANY FRESH MATER IAL HENCE INVALID. (2) D. T. & T. D. C. LTD. VS. CIT (2010) 324 ITR 2 34 (DEL.), IN THE SAID CASE, IT WAS HELD AS UNDER: THE ASSESSING OFFICER HAS BEEN GIVEN POWER TO REAS SESS UNDER SECTION 147 UPON CERTAIN CONDITIONS BEING SATISFIED, AND TH E ASSESSING OFFICER DOES NOT HAVE POWER TO REVIEW. IF SUCH A CHANGE OF OPINION WERE TO BE PERMITTED AS A GROUND OF REASSESSMENT THEN IT WOULD AMOUNT TO GRANTING A LICENCE TO THE ASSESSING OFFICER TO REVIEW HIS DE CISION, WHICH HE DOES NOT HAVE UNDER THE PROVISION OF SECTION 147. (3) ASTEROIDS TRADING & INVESTMENT P. LTD. VS. DCL T (2009) 308 LTR 190 (BOM) , IN THE SAID CASE, IT WAS HELD THAT SINCE NO NEW ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 10 - MATERIAL BROUGHT ON RECORD, REASSESSMENT ON CHANGE OF OPINION OF AN OFFICER NOT VALID. (4) ASIAN PAINTS LTD. VS. DCIT (2008) 308 ITR 195 (BOM), IN THIS CASE, THE HON'BLE HIGH COURT OBSERVED THAT MERE CHA NGE OF OPINION OF A.O. NOT GROUND FOR REASSESSMENT. (5) ICICI PRUDENTIAL LIFE INSURANCE CO. LTD. (2010 ) 325 ITR 471 (BOM), IN THE SAID CASE, THE HON'BLE BOMBAY HIGH COURT HEL D THAT RE-OPENING OF ASSESSMENT ON THE SAME GROUND IN THE ABSENCE OF ANY TANGIBLE MATERIAL WAS BASED ON THE MERE CHANGE OF O PINION AND THEREFORE IS NOT SUSTAINABLE. 9.1 BASED ON THE RATIO OF JUDGMENT DECIDED IN THE AFORESAID CASES, IT FOLLOWS THAT NO VALID PROCEEDING U/S.147 COULD BE I NITIATED EVEN WITHIN A PERIOD OF FOUR YEARS ON MERE CHANGE OF OPINION, IF ALL MATERIAL FACTS HAD BEEN DISCLOSED BY THE ASSESSEE, AND THE AO HAD COMP LETE KNOWLEDGE OF ALL SUCH MATERIALS AND FURTHER, THE ASSESSMENT HAD ALSO BEEN COMPLETED AFTER TAKING INTO CONSIDERATION ALL SUCH MATERIAL F ACTS. 10. THEREFORE, IN THIS CASE OF ASSESSEE, FOLLOWING THE ABOVE JUDGEMENTS THE CONCLUSION CAN BE DRAWN THAT IN THE ABSENCE OF NEW INFORMATION OR DETAIL BEING AVAILABLE TO THE AO, AFTER COMPLETION OF THE ORIGINAL ASSESSMENT U/S.L43(3) OF THE ACT, PROCEEDINGS INITI ATED U/S.L47 OF THE ACT FOR THE RELEVANT ASSESSMENT YEAR IS NOT VALID. ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 11 - 11. IT IS CLEAR IN THE PRESENT CASE OF THE ASSESSE E THAT THE ' REASON TO BELIEVE ' IS BASED ON NON EXISTING MATERIAL AND THEREFORE I N THE ABSENCE OF TANGIBLE MATERIAL TO REACH A REASONABLE BELIEF THAT THE INCOME LIABLE TO TAX HAS ESCAPED ASSESSMENT, THE ENTIRE PROCEEDING INITI ATED U/S.147 OF THE ACT IS LIABLE TO BE QUASHED. REFERENCE IN THIS CONNECT ION IS INVITED TO THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS. AMITABH BACHCHAN , ITA NO.4646 OF 2010 WHEREIN IT WAS HELD AS UNDER: THE ASSESSEE HAD MADE A CLAIM FOR 30% ADHOC EXPEND ITURE. THIS WAS WITHDRAWN BY THE ASSESSEE WHEN ASKED BY THE AO TO S UBSTANTIATE. THE REOPENING ON THE BASIS THAT THE SAID ADHOC EXPENDIT URE CONSTITUTED 'UNEXPLAINED EXPENDITURE' U/S 69 WAS BASED ON THE S AME MATERIAL. THERE WAS NO FRESH TANGIBLE MATERIAL BEFORE THE AO TO REACH A REASONABLE BELIEF THAT THE INCOME LIABLE TO TAX HAS ESCAPED ASSESSMENT. IT IS A SETTLED POSITION OF LAW THAT REVIEW UNDER T HE GARB OF REASSESSMENT IS NOT PERMISSIBLE. 12. AGAIN, AT THIS JUNCTURE ATTENTION IS INVITED TO THE RECENT DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PR. COMMISSIONER OF INCOME-TAX V. TUPPERWARE INDIA (P.) LTD . REPORTED IN [2016] 236 TAXMAN 494, WHEREIN THE COURT WHILE OBSERVING THAT THE EXP RESSION 'REASON TO BELIEVE' CANNOT HAVE TWO DIFFERENT STANDARDS OR SET S OF MEANING, ONE APPLICABLE WHERE THE ASSESSMENT WAS EARLIER MADE UN DER SECTION 143(3) AND ANOTHER APPLICABLE WHERE AN INTIMATION WAS EARL IER ISSUED UNDER SECTION 143(1), HELD AS UNDER: THE REOPENING ORDER OF THE ASSESSING OFFICER ONLY REFERS TO THE REPORT OF STATUTORY AUDITOR UNDER SECTION 44AB WHICH REPOR T WAS ALREADY ENCLOSED WITH THE RETURN FILED BY THE ASSESSEE. THE REFORE, FACTUALLY, THERE WAS NO NEW MATERIAL THAT THE ASSESSING OFFICER CAME ACROSS SO AS TO HAVE TREASONS TO BELIEVE THAT THE INCOME HAD ESCAPE D ASSESSMENT. ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 12 - 13. IN VIEW OF THE ABOVE DECISIONS, WE NOTE HERE T HAT THE ASSESSEE'S CASE IS ON A MUCH BETTER FOOTING THAN THE ABOVE-SAI D CASES. SINCE IN THE CASE OF THE ASSESSEE THE ASSESSMENT WAS ORIGINALLY COMPLETED U/S 143(3) OF THE ACT AND COMPLETE DETAILS OF THE CAPITAL GAIN INCOME & ITS EXEMPTION WERE ALREADY FILED BEFORE THE AO AT THE T IME OF COMPLETION OF ASSESSMENT U/S 143(3) OF THE ACT. 14. IN VIEW OF THE ABOVE, WE QUASH THE PROCEEDING U /S 147 OF THE ACT. AS THE ISSUE HAS BEEN DECIDED BY US ON THE TECHNICA L GROUND, WE REFRAIN OUR-SELF FROM ADJUDICATING THE ISSUE ON MERIT. THE APPEAL OF THE ASSESSEE IS ALLOWED. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/07/2018 SD/- SD/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LN L; L; L; L; (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 13/07/2018 PRITI YADAV, SR.PS ITA NO.778/AHD/2016 SMT NIVVANIBEN D. SANDESARA VS. ITO ASST.YEAR 2008-09 - 13 - !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / CONCERNED CIT 4. ) () / THE CIT(A)-7, AHMEDABAD. 5. ,-. //'( , '(# , 12$&$ / DR, ITAT, AHMEDABAD 6. .34 5 / GUARD FILE. % & / BY ORDER, , / //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD