KRISHNA SYN FAB PRIVATE LIMITED V. THE INCOME TAX OFFICER WARD 1(1)(3)

SCA/20718/2019

AI Insights

The case involves Krishna Syn Fab Private Limited challenging a notice issued by the Income Tax Officer under section 148 of the Income Tax Act, 1961, which sought to reopen the assessment for the Assessment Year 2013-2014. The notice was based on allegations that the company had received accommodation entries amounting to Rs. 50,00,000 from a company managed by Shri Shirish Chandrakant Shah, who was implicated in a scheme of providing accommodation entries. The petitioner argued that the amount was a business advance that was returned the next day, and thus, no income had escaped assessment. The court examined whether the reopening was justified and if there was any failure on the part of the petitioner to disclose material facts.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 747065 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 05-09-2022
• Assessment Year: misc
• Other Referred Cases: Gujarat Television (P) Ltd. v. Assistant Commissioner of Income tax, Circle 2(1)(2), M/s. Aradhana Estate Pvt. Ltd. v. CIT, Raymond Woolen Mills Ltd. vs. I.T.O., M/s Khatu Shyam Processors (P.) Ltd Vs Deputy Commissioner of Income Tax, Circle 1(1)(2), Kottex Industries Private Limited v. Assistant Commissioner of Income tax, Commissioner of Income tax v. Kelvinator of India Ltd.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: NIKUNT RAVAL; KALPANA RAVAL
• Assessee Lawyers: TUSHAR HEMANI; VAIBHAVI PARIKH
• Keywords: Accommodation entry; Assessment Year 2013-2014; Income Tax; Reopening of assessment
• Section: 147; 148; 143(3); 151

Judgement Text

"C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 20718 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== KRISHNA SYN FAB PRIVATE LIMITED Versus THE INCOME TAX OFFICER WARD 1(1)(3) ========================================================== Appearance: MR TUSHAR HEMANI SENIOR ADVOCATE WITH MS VAIBHAVI K PARIKH(3238) for the Petitioner(s) No. 1 MR NIKUNT RAVAL WTIH MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 05/09/2022 ORAL JUDGMENT Page 1 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1.Heard learned Senior Advocate Mr. Tushar Hemani assisted by learned advocate Ms. Vaibhavi Parikh for the petitioner and learned advocate Mr. Nikunt Raval with learned advocate Mrs. Kalpana K. Raval for the respondents. 2.Having regard to the controversy involved in this petition, with the consent of the learned advocates for the respective parties, the petition is taken up for final hearing. 3.Rule returnable forthwith. Learned advocate Mr. Nikunt Raval waives service of notice of rule for the respondents. 4.The petitioner has preferred this petition under Article 226 of the Constitution of India challenging the impugned notice dated Page 2 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 29.03.2019 issued under section 148 of the Income Tax Act, 1961 (For short “the Act”) proposing to reopen the assessment for the Assessment Year 2013-2014. 5.Brief facts of the case are that the petitioner is a company incorporated under the Companies Act, 1956. It is the case of the petitioner that during the Financial Year 2012-2013 relevant to the Assessment Year 2013-2014 i.e. the year under consideration, the petitioner had received advance of Rs.50,00,000/- (Rs.30,00,000+ Rs.20,00,000) on 18.03.2013 from one of the customers namely M/s. Aristo Media and Entertainment Pvt. Ltd. through banking channel in connection with a business transaction. However, the underlying business transaction was not confirmed and hence, such amount of Rs.50,00,000/- was returned to the said party through the banking channel on 19.03.2013 Page 3 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 itself i.e. the very next day. 5.1) The petitioner filed return of income for the year under consideration on 29.09.2013 declaring total income at Rs.4,18,830/-. 5.2) The case of the petitioner for the year under consideration was selected for scrutiny assessment. It is the case of the petitioner that various details and information were called for by the then Assessing Officer and the same were duly furnished by the petitioner from time to time and the then Assessing Officer, after examining details furnished from time to time, framed assessment under section 143(3) of the Act vide order dated 18.01.2016 whereby total income of the petitioner was determined at Rs.4,57,440/-. Page 4 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 5.3) The respondent thereafter issued notice dated 29.03.2019 under section 148 of the Act seeking to reopen the case of the petitioner for the year under consideration. 5.4) The petitioner filed return of income on 23.08.2019 in response to the impugned notice and requested the respondent to supply copy of reasons for reopening. 5.5) The respondent supplied the copy of reasons for reopening vide letter dated 30.08.2019. The reasons recorded by the Assessing Officer for reopening the assessment under section 147 of the Act read as under: “The assessee company filed its return of income for the A.Y. 2013- 14 on 29.09.2013 declaring total income at Rs.418830/-. The said return of income was processed u/s 143(1) of the 1.T. Act on The assessee is engaged in the business in trading of import/ export of artificial silk cloth. Assessment in the case of the assessee has been Page 5 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 completed on 18.01.2016 by making, addition of various expenses and Income was determined at Rs.4,57,440/- 2. In this connection, information has been received from the DDIT(Inv). Unit 1(3), Ahmedabad that a search and survey operation was carries out in the cases of Shri Shirish Chandrakant Shah and others on 09/04/2013 and on perusal and analysis of the documents and other evidences found and the statements of Shri Shirish Chandrakant Shah and his key employees on the evidences seized/ impounded it has been found that Shri Shirish Chandrakant Shah is managing and controlling 212 companies including 16 listed companies having offices spread across the country which are being used so as to facilitate accommodation entries to clients against receipt of cash. The evidences found and other enquiries conducted during the search and post search proceedings clearly established that these 212 companies are nothing but merely layers used by Shirish Chandrakant Shah so as to run his accommodation entry business. As per the information received from the DDIT (Inv.) Unit 1(3), Ahmedabad, Shirish C. Shah uses the infrastructure of 212 companies managed and controlled by him so as to provide following type Page 6 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 of accommodation entries for commission. One time entry of share application money/ share capital and share premium. Accommodation entries of unsecured loans. Accommodation entries of bogus long- term capital gain: (LTCGS) and at times of short-term capital gain (SCG). Bogus turnover entries i.e. bogus purchases, sales and contract entries 3. On perusal of the information received, it is noticed that the assessee M/s Krishna Syn Fab Pvt. Ltd is one of the beneficiaries of above accommodation entries and who has taken entry of Rs 50,00,000/- from the company managed and controlled by Shri Shrish Chandrakant Shah, 4.1 The facts mentioned above and also analysis of the information available on record leads to the conclusion that the assessee has taken accommodation entry of Rs.50,00,000/- from the company M/s Astro Media and Entertainment Pvt Limited managed and controlled by Shri Shirish Chandrakant Shah. Further, during the course of assessment proceedings in the case of the assessee for the A.Y. 2011- Page 7 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 12, on perusal of Bank account statement collected from the Kotak Mahindra Bank of the assessee, it is found that the assessee has taken accommodation entry of Rs.30,00,000/- and Rs.20,00,000 on 18.03.2013 M/s Astro Media and Entertainment Pvt Limited managed and controlled by Shri Shirish Chandrakant Shah. The assessee in its submission provided details of loan and advances taken / given and also details of purchase and sales, But, the assessee not provided details of these entries in its submission. 4.2 In view of the above facts, it is clear that there is a default on the part of the assessee to disclose fully and truly all material facts in respect of its income during the year under consideration and, therefore, I have reason to believe that the income to the extent of Rs.50,00,000/- has escaped assessment within the meaning of Explanation 2(c) of Section 147 of the I.T. Act, for which the case of the assessee for the A.Y. 2013-14 needs to be reopened u/s 147 of the I.T. Act 5 Applicability of provisions of Section 147/151 to the facts of the case. It is pertinent to mention here that in this case the assessee has filed return of income for the year and assessment has been completed u/s Page 8 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 143(3) of the IT Act on 18.01.2016 by accepting the Return Income of the assessee. Since 4 year has from the end of the relevant assessment year has expired in this case, the requirements to initiate proceedings u/s 147 of the Act are reason to believe that Income for the year under consideration has escaped assessment because of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the year under consideration. It is pertinent to mention here that reasons to believe that Income has escaped assessment for the year under consideration have been recorded above in para 4 I have carefully gone through the records containing the submission made by the assessee in response of various notices issued during the course of assessment proceedings and noticed that the assessee has not fully and truly disclosed the material facts necessary for his assessment for the year under consideration. It is evident from the above facts that the assessee had not truly and fully disclosed material facts necessary for its assessment for the year under consideration thereby necessitating reopening u/s 147 of the IT Act. It is true that the assessee has filed annual Return and Audited Profit and loss account and balance sheet along with Return of Income Page 9 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 where various information/ material were disclosed. However, the requisite full and true disclosure of all material facts necessary for assessment has not been made as noted above. Therefore the case of the assessee also falls in the explanation 1 of Section 147 of the IT Act. In this case more than four years have lapsed from the end of assessment year under consideration. Hence necessary sanction to issue notice u/s 148 has been obtained separately from Principal Commissioner of Income-tax as per the provisions of Section 151 of the Act.” 5.6) The petitioner, vide letter dated 10.09.2019, raised the objections against reopening of assessment. 5.7) The respondent, however, vide order dated 19.10.2019 disposed of such objections raised by the petitioner against reopening holding that the reopening is justified. 5.8) Being aggrieved by the said impugned order, the petitioner has preferred the Page 10 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 present petition. 6.Learned Senior Advocate Mr. Tushar Hemani for the petitioner submitted that the condition precedent for the purpose of resorting to reopening proceedings under the provisions of section 147 of the Act is that there must be escapement of any income chargeable to tax. In the absence of escapement of any income chargeable to tax, it is not open for the Department to reopen the case of an assessee. 6.1) It was submitted that the main ground for reopening the assessment by the Assessing Officer was that the assessee has taken accommodation entry of Rs. 50,00,000/- from the company M/s. Astro Media and Entertainment Pvt. Ltd. managed and controlled by Shri Shirish Chandrakant Shah. It was submitted that the underlying sum of Rs.50,00,000/- received from M/s. Aristo Page 11 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 Media and Entertainment Private Limited was an advance in connection with a business transaction. Such advance of Rs.50,00,000/- (Rs.30,00,000+ Rs.20,00,000) was received on 18.03.2013 through banking channel. However, the underlying business transaction was not confirmed and hence, such amount was returned to the said party through the banking channel on 19.03.2013 itself i.e. the very next day. Thus, the transaction as to receipt of the underlying sum was purely a business transaction which, somehow, could not materialize and hence, the amount so received from the said party was returned. Accordingly, no income element is embedded in the transaction and hence, no addition can be made in respect of the underlying sum. 6.2) It was further submitted that had it been the case that the underlying sum was an accommodation entry, then such sum would not Page 12 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 have been returned to the said party. Rather, such sum would have remained in the books of accounts of the petitioner so that the petitioner could enjoy the benefits of such sum. The very fact that the sum in question was returned would demonstrate that the petitioner could not have been benefited by any means on account of the said transaction. It was submitted that when no addition can be made at all, the question of escapement of any income chargeable to tax does not arise at all. Hence, the impugned notice issued by the respondent under section 148 of the Act deserves to be quashed. 6.3) It was submitted that the information gathered during the course of search action carried out on 09.04.2013 in the case of Shirish Chandrakant Shah was very much available with the Department while framing assessment under section 143(3) of Page 13 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 the Act in the case of the petitioner. No new tangible material has been unearthed by the Department subsequent to framing of such assessment under section 143(3) of the Act. Hence, while framing the assessment, it was open to the respondent to take any action in respect of the transaction in question. However, the respondent chose not to do anything of such sort. Therefore, the impugned notice seeking to reopen the assessment deserves to be quashed and set aside. 6.4) Learned Senior Advocate Mr. Hemani further submitted the assessment for the year under consideration was framed under section 143(3) of the Act and the same is now sought to be reopened beyond the period of four years from the end of the relevant assessment year. It was submitted that an assessment framed under section 143(3) of the Act can be Page 14 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 reopened beyond the prescribed period of four years from the end of the relevant assessment year if and only if an income chargeable to tax has escaped assessment by reason of failure on the part of the petitioner to file a return under section 139 or in response to the notice issued under section 142(1) or section 148 or (ii) to disclose fully and truly all material facts necessary for his assessment for that Assessment Year. It was submitted that there is no failure on the part of the petitioner to disclose truly and fully all materials necessary for assessment. The transaction in question was also duly reflected in the bank account of the petitioner which was duly recorded in the books of accounts. The bank statement of the petitioner was produced at the original assessment stage along with books of accounts. Under such circumstances, it cannot be said that there was any failure on the Page 15 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 part of the petitioner as to full and true disclosure. 6.5) It was submitted that as per section 151 of the Act, no notice shall be issued under section 148 of the Act after the expiry of a period of four years from the end of the relevant assessment year unless the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing officer, that it is a fit case for the issue of such notice. It was submitted that reopening in the case of the petitioner has been sanctioned merely in a mechanical manner which is not permissible in the eye of law. 6.6) It was submitted that statutory notice under section 148 can be issued if and only if an Assessing Officer has reason to Page 16 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 believe that any income chargeable to tax has escaped assessment. It implies that an Assessing Officer himself must be satisfied that some income chargeable to tax has escaped assessment. It was submitted that in the present case no such satisfaction has been recorded by the respondent himself and in fact, the respondent has merely relied upon the information received from the DDIT (Inv.), Unit 1(3), Ahmedabad for the purpose of reopening the assessment in the case of the petitioner. In absence of any such exercise at the end of the respondent, it becomes clear that the assessment has been reopened merely based on borrowed satisfaction as against the statutory requirement of independent satisfaction. Hence, the impugned notice issued by the respondent under section 148 of the Act deserves to be quashed and set aside. Page 17 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 6.7) In support of his contention that present case being a case of change of opinion by the Assessing Officer, the reassessment proceedings deserves to be quashed and set aside, reliance was placed on the decision of this Court in case of Gujarat Television (P) Ltd. v. Assistant Commissioner of Income tax, Circle 2(1)(2) reported in (2018) 94 taxmann.com 400 (Gujarat). 7.On the other hand, learned advocate Mr. Nikunt Raval for the respondent submitted that an information was received from the DDIT(Inv), Unit 1(3), Ahmedabad that a search and survey operation was carried out in the case of Shri Shirish Chandrakant Shah and others on 09.04.2013 and on perusal and analysis of the documents and other evidences found and the statements of Shri Shirish Chandrakant Shah and his key employees on the evidences seized/ impounded, it has been Page 18 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 found that Shri Shirish Chandrakant Shah is managing and controlling 212 companies including 16 listed companies having offices spread across the country which are being used so as to facilitate accommodation entries to clients against receipt of cash and the assessee company is its beneficiary. 7.1) It was submitted that the provision of Section 68 of the Act provides that where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year. It was submitted that in the case of the assessee company, the bank account of the assessee Page 19 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 company is credited with Rs. 50,00,000/- and books of the assessee are audited which clearly proves that books of the assessee was credited with Rs. 50,00,000/- during the year under consideration from one of the bogus concerns managed and controlled by Shri Shirish Chandrakant Shah and therefore, there is escapement of income in the hand of the assessee. 7.2) It was submitted that in case of the assessee, information was received in respect of accommodation entries of Shirish Chandrakant Shah through the Addl. CIT vide letter vide his letter dated 27.12.2017. The assessment in the case of the assessee was completed under section 143(3) of the Act on 18.01.2016 and information was received by the Assessing Officer after completion of assessment proceedings. Therefore, there is tangible material in the possession of the Page 20 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 Assessing Officer in the form of information received in the case of Shri Shirish Chandrakant Shah. 7.3) Learned advocate Mr. Raval submitted that information was received from the DIT(inv) Ahmedabad, in respect of search and survey carried out in the case of Shri Shirish Chandrakant Shah wherein the details of assessee was also forwarded as beneficiary of accommodation entries. The said information was not before the Assessing Officer and the assessee also had not provided the details that it is beneficiary of accommodation entry. The assessee also had in its submission dated 27.10.2015 never provided the bank account statement of Account no. 510011073726 held with Kotak Mahindra Bank during assessment proceedings. It was submitted that the assessee has deliberately not submitted the details of the Page 21 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 bank account and only submitted a copy of bank account statement of TAMILNADU MERCANTILE LTD. Therefore, there is a failure on the part of the assessee to disclose truly and fully all material facts necessary for assessment. 7.4) It was submitted that due approval has been taken from the competent authorities and the competent authority duly verified the details/records and satisfied himself for issuance of notice under section 148 of the Act in the case of assessee and in the notice itself it is mentioned that this notice is being issued after obtaining necessary satisfaction of the Pr. CIT Surat,-1. 7.5) It was submitted that after receiving the information from the case record of the assessee and details received from DIT(inv) Ahmedabad and details collected Page 22 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 from the bank, the Assessing Officer drew his satisfaction and recorded reasons for reopening the case of the assessee and the reason recorded itself provides that the Assessing Officer has duly applied his mind while recording reasons in the case of the assessee. 7.6) In support of his submission that reassessment proceedings initiated on the basis of information received from investigation wing are upheld by this Court, reliance was placed on the following decisions: 1) M/s. Aradhana Estate Pvt. Ltd. v. CIT reported in (2018) 91 Taxmann.co 199 (Gujarat). 2) Raymond Woolen Mills Ltd. vs. I.T.O. reported in 236 ITR 34 Page 23 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 3) M/s Khatu Shyam Processors (P.) Ltd Vs Deputy Commissioner of Income Tax, Circle 1(1)(2) reported in (2018) 94 taxmann.com 429 (Gujarat). 4) Kottex Industries Private Limited v. Assistant Commissioner of Income tax reported in 437 ITR 211 8.Having heard the learned advocates for the respective parties at length and on perusal of the reasons recorded by the Assessing Officer, the impugned notice under section 148 of the Act is issued by taking into consideration the information received from DDIT(Inv.) Unit-I, Ahmedabad with regard to modus operandi of providing accommodation entries by one Shirish Chandrakant Shah and others against receipt of cash to more than 212 companies including 16 listed companies Page 24 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 having offices spread across the country wherein the name of the petitioner company also appeared in the list of 212 companies. The Assessing Officer therefore, on the basis of information available on record, was of the opinion that there was accommodation entry of Rs. 50 lakhs taken by the petitioner company from M/s. Astro Media and Entertainment Private Limited managed and controlled by Shri Shirish Chandrakant Shah during the year under consideration. 9.However, as it emerges from the facts on record that the petitioner has taken Rs.50 lakhs only for one day i.e., on 18.03.2013 and returned the same amount on 19.03.2013. Moreover, the assessment order under section 143(3) of the Act was passed on 18.01.2016 by way of regular assessment after issuing notice under section 143(2) and 142(1) of the Act along with detailed questionnaire calling Page 25 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 for various details by the Assessing Officer. Therefore, merely because information with regard to search operations carried out in the year 2013 was provided by the investigation department in the year 2019, the Assessing Officer cannot assume the jurisdiction to reopen the assessment after more than four years when there is no failure on part of the assessee to disclose fully and truly all material facts during the course of regular assessment. 10. From the details furnished by the petitioner in response to the objections raised before the Assessing Officer in response to notice under section 148, the petitioner has clearly stated that amount of Rs. 30 lakhs and Rs. 20 lakhs was received on 18.03.2013 as advance and same was refunded on the next date i.e. on 19.03.2013 within 24 hours. Therefore, only because the amount was Page 26 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 received from M/s. Aristo Media and Entertainment Pvt. Ltd. which was controlled by Shri Shirish Chandrakant Shah, alleged to have been a bogus company, it cannot be stated to be an accommodation entry though there is no benefit availed by the petitioner out of such transaction. 11. In view of such facts, the impugned notice must fail because the Assessing Officer has ignored the fact that advance received by the assessee was repaid within 24 hours and there is nothing on record to show that such amount was later on utilised for any other purpose. When the advances were refunded on the next date, nothing remained outstanding in the books of the petitioner, more particularly, at the end of financial year. The Assessing Officer during the course of regular assessment has scrutinised all the details called for including the advances Page 27 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 received and paid by the petitioner and as such, there is no new tangible material available on record which would permit the Assessing Officer to have a reason to believe that income has escaped assessment beyond the period of four years, more particularly, when the petitioner assessee has disclosed fully and truly all the materials during the course of regular assessment. The Assessing Officer has issued the impugned notice merely on the basis of the report received from DDIT, investigation in the year 2019 with regard to 212 companies and on scrutiny of transaction of such companies, transaction of Rs. 50 lakhs which was received by the assessee company as advance and refunded the same, has also come to the notice of the Assessing Officer, and therefore, it is apparent that the Assessing Officer seems to have proceeded completely on misapplication of the facts. Page 28 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 12. The contention of the learned advocate for the respondent that this was a simple case of accommodation entry in view of investigation report available on record after completion of the assessment, is not sustainable in view of the fact that even if the amount of Rs. 50 lakhs can be considered as accommodation entry, the same was refunded on the next day. Such accommodation entry could have been considered if the same would have remained in the books of assessee at the end of financial year. 13. In view of foregoing reasons, the impugned notice under section 148 of the Act to reopen the assessment for the Assessment Year 2013-2014 is nothing but a mere change of opinion and the Assessing Officer therefore, cannot assume the jurisdiction to issue such notice. The Hon’ble Supreme Court in case of Commissioner of Income tax v. Page 29 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 Kelvinator of India Ltd. reported in (2010) 320 ITR 561(SC), has held that the words “reason to believe” would not give arbitrary power to the Assessing Officer to reopen the assessment on the basis of “mere change of opinion” which cannot be per-se reason to reopen the assessment. The Apex Court further observed that the conceptual difference between the powers to review and powers to reassess has to be kept in mind and the Assessing Officer has no powers to review but he has powers to reassess. Therefore, it was held that the reassessment has to be based on fulfillment of certain pre-condition and if the concept of “change of opinion” is removed as contended on behalf of the department then in garb of reopening the assessment, review would take place and as such the concept of “change of opinion” has to be applied as an inbuilt test to check the abuse of power by the Assessing Officer. Page 30 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 14. In view of the facts emerging from the record as well as the settled legal position, the impugned notice under section 148 of the Act is nothing but a mere change of opinion by the Assessing Officer resulting into review of assessment order leading to make a roving inquiry into the facts which were already considered by the Assessing Officer at the time of framing the regular assessment under section 143(3) of the Act. The Assessing Officer therefore, cannot be permitted to re-verify the facts for exercising the powers to reopen the assessment. The decisions relied upon by the learned advocate for the respondents are, therefore, not applicable to the facts of this case, more particularly, when there is no new tangible material available on record which would lead to a reason to believe that income has escaped the assessment. Page 31 of 32 C/SCA/20718/2019 JUDGMENT DATED: 05/09/2022 15. For the foregoing reasons, the impugned notice dated 29.03.2019 issued under section 148 of the Act by the respondent exercising the powers to reopen the assessment for the Assessment Year 2013-2014 is illegal and liable to be set aside. Accordingly, impugned notice dated 29.03.2019 is hereby set aside. 16. The petition succeeds and is allowed. Rule is made absolute to the aforesaid extent. No order as to costs. (N.V.ANJARIA, J) (BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 32 of 32 "