RAHUL BAJPAI,IDGAH CHOWK V. ACIT CIRCLE 1(1), SHRI RAM PLAZA

ITA 348/RPR/2023

AI Insights

The case revolves around the reassessment of Rahul Bajpai's income for the assessment year 2014-15, where the Assistant Commissioner of Income Tax (ACIT) reopened the assessment under Sections 143(3) r.w.s. 147 of the Income-tax Act, 1961, due to discrepancies in the declared and fair market values of a land purchase. The Tribunal examined whether the reassessment was validly initiated and whether it constituted a mere change of opinion by the ACIT. The Tribunal found that the reassessment was based on new material facts and not merely a change of opinion, thus upholding the ACIT's decision.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 469794 (ITAT-RAIPUR)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Other Referred Cases: National Thermal Power Company Ltd. Vs. CIT, Kelvinator of India Ltd. Vs. CIT, Asian Paints Ltd. Vs. DCIT
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S.L ANURAGI
• Assessee Lawyers: R.B DOSHI
• Keywords: Business income; Difference of opinion; Change of opinion; Capital asset; Reassessment proceedings; Question of law; Depreciation; Sale consideration of property below Jantri Value; Fair market value; Reopening of assessment; Search and seizure; Earning of tax free income; Assessment record; Competent authority; Reason to believe; Tangible material; Borrowed satisfaction
• Section: 148; 143(3); 142(1); 143(2); 195; 250; 153; 56(2)(vii)(b); 56(2); 139

Judgement Text

"आयकर अपीलȣय अͬधकरण Ûयायपीठ रायपुर मɅ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.348/RPR/2023 Ǔनधा[रण वष[ / Assessment Year: 2014-15 Rahul Bajpai Idgah Chowk, Bilaspur Chhattisgarh-495 001 PAN: AEXPB4410L .......अपीलाथȸ / Appellant बनाम / V/s. The Assistant Commissioner of Income Tax, Circle-1(1), Bilaspur (C.G.) ……Ĥ×यथȸ / Respondent Assessee by : Shri R.B Doshi, CA Revenue by : Shri S.L Anuragi, CIT-DR सुनवाई कȧ तारȣख / Date of Hearing : 09.01.2025 घोषणा कȧ तारȣख / Date of Pronouncement : 20.01.2025 2 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 आदेश / ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 27.09.2023, which in turn arises from the order passed by the A.O under Sec.143(3) r.w.s. 147 of the Income-tax Act, 1961 (in short ‘the Act’) dated 30.12.2019 for the assessment year 2014-15. The assessee has assailed the impugned order on the following grounds of appeal before us: \"1. That the order u/s 250 as passed by the Ld.CIT (Appeals) is bad in law as well as on facts. 2. That the reopening is invalid based on change of opinion as the facts of purchase of land worth Rs.4,11,000/- was brought to the notice of A.O. in the original assessment. No new material was available to the A.O. – ITAT Raipur in Lakhichand Sidara ITA NO. 180/RPR/2017. 3. The order is Void-ab-initio as the copy of reasons were supplied at the fag end of the order u/s 143(3), thus violating the directions of the Hon'ble SC in GKN Driveshaft. 4. That the order is Void-ab-initio as the copy of approval as requested was not provided - ITAT, Raipur in the case of Saraswati Garewal, ITA No. 166/RPR/2022 dated 25/10/2023. 5. That the CIT(A) erred in invoking section 56(2)(vii)(b) not considering that the land purchased was stock in trade and shown in the balance sheet as current assets at the time of original assessment also. 6. That CIT(A) erred in confirming addition of Rs.3,70,89,000/- to the total income of the appellant. 3 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 7. That the appellant craves leave to add to and/or amend. Alter; rescind the grounds taken here in above, before or the time of hearing of this appeal.” 2. Also, the assessee has raised an additional ground of appeal which reads as under: \"In the facts and circumstances of the case and in law, reassessment order passed by A.O is illegal, ab initio void as it was passed without issuing notice u/s.143(2) within the prescribed time. The reassessment order has been passed in violation of mandatory provisions of law and is liable to be quashed as illegal and not sustainable. As the assessee based on the additional ground of appeal has assailed the validity of the jurisdiction that was assumed by the A.O for framing the impugned assessment, the adjudication of which would not require looking any further beyond the facts available on record, therefore, we have no hesitation in admitting the same. Our aforesaid view that where an assessee, had raised, though for the first time, an additional ground of appeal before the Tribunal which involves purely a question of law and requires no further verification of facts, then, the same merits admission finds support from the judgment of the Hon’ble Supreme Court in the case of National Thermal Power Company Ltd. Ltd. Vs. CIT (1998) 229 ITR 383 (SC). 3. Succinctly stated, the assessee had filed his original return of income for the subject year i.e. A.Y.2014-15 on 31.03.2015, declaring an 4 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 income of Rs.38,06,600/-. Original assessment was framed by the A.O vide his order passed u/s. 143(3) of the Act, dated 23.08.2016 accepting the returned income. 4. Subsequently, the A.O based on information that while for the assessee had purchased a land situated at Talapara, Bilaspur vide a registered sale deed for a consideration of Rs.4,11,000/-, but the Fair Market Value (FMV) of the said property that was adopted by the stamp valuation authority was Rs.3.75 crore, thus, holding a conviction that the difference in the aforesaid value being the income of the assessee chargeable to tax u/s. 56(2)(vii)(b) of the Act had escaped assessment, initiated proceedings u/s. 147 of the Act. Notice u/s. 148 of the Act, dated 06.06.2018 was issued by the A.O. In compliance, the assessee filed his return of income for the subject year on 11.06.2018 declaring an income of Rs.38,25,590/- Thereafter, the A.O issued notice u/s. 143(2) of the Act, dated 05.11.2019 calling upon the assessee to furnish documents, accounts and other evidence in support of the return of income filed by him. The “reasons to believe” based on which the A.O had initiated proceedings u/s. 147 of the Act are culled out as under: 5 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 5. During the course of the assessment proceedings, the A.O in the backdrop of the fact that the assessee had purchased the subject property for a consideration of Rs.4,11,000/-, whereas, the “Fair Market Value” (FMV), i.e. the value adopted by the stamp valuation authority for the same was Rs.3.75 crore, thus, called upon him to put forth an explanation that as to why the difference of Rs.3,70,89,000/-[ Rs.3,75,00,000/-(-) Rs.4,11,000/-] may not be deemed as his income for the year under 6 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 consideration u/s. 56(2)(vii)(b) of the Act. In reply, it was the assessee’s claim that as the subject property was reflected in his “balance sheet” under the head “Current assets” (in the return of income filed in response to notice u/s. 148 of the Act) i.e. as stock-in-trade, therefore, the provisions of Section 56(2)(vii)(b) of the Act were not applicable. Elaborating further, it was stated by him that the consideration that would be received by him on sale of the subject property would be in the nature of a business receipt and, thus, taxable in the year of sale as business income in his hands. However, the aforesaid claim of the assessee did not find favour with the A.O. The A.O observed that the assessee was proprietor of a concern viz. M/s. Infracare. It was observed by him that though the assessee had in return of income filed in response to notice issued u/s. 148 of the Act, inter alia, disclosed the subject property i.e. land situated at Talapara, Bilaspur under the head “current asset” but nothing was shown under the said head in his original return of income for the year under consideration that was filed by him on 31.03.2015. Further, the A.O in order to ascertain the nature of business of the assessee issued notice u/s. 142(1) of the Act, dated 30.11.2019, wherein, he was called upon to furnish certain details. In reply, the assessee submitted that the subject land formed part of the stock-in-trade of a project which was under planning stage. It was, thus, stated by the assessee that as the property under consideration i.e. land situated at 7 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 Talapara, Bilaspur was purchased/held as stock-in-trade of his business, therefore, the provisions of Section 56(2)(vii) of the Act were not attracted. The assessee to fortify his aforesaid claim had filed before the A.O the “trading account” for the year ending on 31.03.2014, wherein he had shown “opening stock” of Rs.21,47,900/-, purchases of Rs.30,47,800/- and “closing stock” of Rs.51,95,700/-. 6. The A.O in order to verify the authenticity of the aforesaid claim of the assessee referred to his return of income for the immediately preceding year i.e. A.Y.2013-14, which revealed the “closing stock” (as on 31.03.2013) at Rs.Nil. Accordingly, the A.O based on the aforesaid facts that had surfaced on a perusal of the return of income for the preceding year i.e. A.Y.2013-14, observed that the assessee had projected a wrong claim of “opening stock” (as on 01.04.2013) of Rs.21,47,900/- as the “closing stock” (as on 31.03.2013) in his return of income for A.Y.2013-14 was disclosed at Rs. Nil. Also, the A.O taking cognizance of the fact that the assessee had neither shown any current assets in his return of income for the preceding year nor claimed any depreciation on plant and machinery in the said year, thus, held a firm conviction that no real estate business was being carried out by him during the said preceding year. Apart from that, the A.O observed that the assessee had not shown any land development or real estate as his business in the returns of income filed for A.Y.2012-13 to A.Y.2017-18. The A.O based on the aforesaid facts 8 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 concluded that the assessee had not carried out any real estate business or land development for A.Y.2012-13 to A.Y.2017-18 and, thus, was not holding any property as stock-in-trade. Also, the A.O observed that unlike the preceding and succeeding years the assessee had only in his return of income filed in compliance to notice u/s. 148 of the Act for the year under consideration i.e. A.Y.2014-15 disclosed in the “balance sheet” therein filed “current assets” of Rs.51,95,700/-. Accordingly, the A.O based on his aforesaid deliberations was of the view that the assessee’s claim of having purchased the subject land i.e. land situated at Talapara, Bilaspur as stock-in-trade of his business could not be accepted, for the following reasons: “i) The assessee has not been able to prove that he was in business of land development or real-estate during the year under consideration. ii) The assessee has not shown said immovable property as stock in trade/current asset in his return of income filed on 31.03.2015. iii) The assessee has not been able to give any evidence regarding purchase & sale of land as his business. iv) The assessee has submitted that the project is still under planning stage. The assessee has not furnished any evidence in support of his claim. v) The intention of purchaser (for real-estate business or land development) at the time of purchase is important. At the time of purchase in case of assessee nowhere it is evident that the assessee has considered the said immovable property as stock of business. On the analysis of return of income from A.Y. 2012- 13 to 2017-18 it is concluded that the assessee has failed to substantiate his claim that the said immovable property is his stock in trade.” 9 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 The A.O based on his aforesaid observations rejected the assessee’s claim that the subject property i.e. land situated at Talapara, Bilaspur was held by him as stock-in-trade and, thus, for the said reason, the provisions of Section 56(2)(vii) of the Act were not applicable in his case. 7. Accordingly, the A.O based on his aforesaid conviction vide his order passed u/s.143(3) r.w.s. 147 of the Act, dated 30.12.2019 brought the difference in the FMV (stamp duty value) vis-à-vis the actual purchase value of Rs.3,70,89,000/-[Rs.3,75,00,000/-(-) Rs.4,11,000/-] to tax by treating the same as the income of the assessee u/s. 56(2)(vii)(b) of the Act and determined his income at Rs.4,08,95,600/-. 8. Aggrieved, the assessee carried the matter in appeal before the CIT(Appeals) but without success. For the sake of clarity, the observations of the CIT(Appeals) are culled out as under: “5. Observations, Findings and Decisions: 5.1. I have carefully examined the facts of the case, the assessing officer's (hereinafter A.O) conclusion and the appellant's submission. The order passed by the A.O. under section 143(3) read with section 147 of the Income Tax ct,1901 (hereinafter the Act) has been challenged on four grounds as listed above in paragraph of 2.1 of this order. Even though the appellant has taken four ground in appeal, the effective grounds of appeal are two as mentioned below:- (1) Challenge to the validity of assumption of jurisdiction by the A.O under section 147 read with section 148 of the Act. (2) Challenge to the addition of rupees 3,70,89,000/-made by the A.O. under section 56(2(vii)(b) of the Act. 10 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 5.2 There are many objections raised by the appellant regarding lack of jurisdiction as well as on the addition mentioned above. Following paragraphs address the issues so raised by the appellant in appropriate place. 6.1. The appellant states that there was failure of the A.O, to provide the reasons recorded for re-opening of the assessment under section 147 of the Act. The appellant has made detailed submissions and relied on the decisions of the Hon'ble Supreme Court and various High Hon'ble High Courts to support his arguments as noted above in this order. It is crucial to examine if the A.O. failed to provide the reasons so recorded for re- opening of the assessment under section 147 of the Act. despite the appellant's request. 6.2. There is no dispute that the A.O. recorded the reasons prior to issuance of notice under section 148 of the Act. The material available on record indicates that the A.O. provided the appellant with the reasons before the reassessment proceedings were completed. As a matter of fact, the appellant admitted the above facts in his submissions, as reproduced above in this order. The only issue that remains to be decided is if the appellant received the reasons within a reasonable time. 6.3 It is essential to reproduce the relevant part of the appellant's submission to gain a better understanding of the matter. \"Later, in response to the notice u/s 148 dL6/6/2018 ITR was filed on 17/6/2018 declaring total income of Rs.38,25,590/- with a specific request in writing for supply of reasons for re- opening of the assessment of the case and also for supply of justification given by the competent authority. This request was made on 13/06/2018” \"Reasons for re-opening together with copy of approval by the competent authority, if any, were not communicated within reasonable time. Notice u/s 148 was issued on 6/6/2018 In response, ITR was filed on 17/6/2018. Request for supply if reasons recorded for re-opening together with copy of approval obtained, if any, was made vide letter 13/6/2018.\" “For proper presentation of facts, and for arriving at reasonable conclusion on the crux of the issue, the A/R of the assessee had officially inspected the records of the assessee for the relevant year. 6.4 Thus, it is clear from the appellant's above submissions that the appellant failed to comply with the decision of Hon'ble 11 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 Supreme Court in the case GKN Drive shift(India) Ltd vs ITO because he sought reasons recorded for re-opening of assessment even before submitting the return in response to the notice under section 148. It was held by the Hon'ble Supreme Court that after filing of the return in response to notice under section 148 of the act request for copy of the reasons recorded to be made by assessee. It is important to mention here that the appellant practically sought for reasons recorded for re-opening of assessment when he furnished submission before the A.O. on 08/11/2019. It is pertinent to take note of the fact that the appellant did not comply with notice issue under section 143(2) and 142(1) of the Act respectively until 08/11/2019 when he furnished submission for the first time. 6.5 Moreover, the appellant own admission noted above shows that the A.O. allowed inspection of the record of the assessee for the relevant assessment year. In fact, the authorised representative of the appellant officially inspected the records of the appellant for the relevant assessment year. Not only that, the appellant was also given a certified copy of the reasons recorded by the officer. Considering the above facts, it cannot be concluded that the appellant was denied the chance to file an objection for re-opening of assessment. Even assuming, but not conceding, that the reasons recorded by the A.O. was given to the appellant late on 15/12/2019, the appellant had two weeks to object to re-opening, but he chose not to object. It is not the case of the appellant that recorded reasons were not given to him before completion of reassessment proceedings. If the assessee does not file objections before the A.O., he cannot challenge the same in appellate proceedings. As the appellant failed to raise the question of the validity of the A.O's assumption of jurisdiction under section 147 read with 148 of the Act, he is not entitled to another chance to raise the same issue in the appellate stage. As stated previously, the appellant has placed reliance on the decisions of the Hon'ble Supreme Court and various High Court in support of his contention. In this context, it is to be noted that no court has held that the ratio decided by any case can be applied universally without understanding the fact of the case in hand. The facts of the cases referred by the appellant are not the same as the facts of the present case and therefore the ratio of the cases cited by the appellant are not applicable to the facts of the present case. Taking into consideration the entirety of the facts and the discussion made earlier, I am of the view the AO initiated reassessment proceedings validly. Hence, the contentions of appellant are rejected. 12 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 6.6. The assessee contends that copy of approval was not supplied to him by the officer. The assessment order indicates that the approval was obtained by the A.O. before initiation of proceedings under section 147 read with section 148 of the Act. The submission of the appellant shows that on the one hand, he claims that he was not given a copy of the approval, while on the other hand, he asserts that approval for initiation of reassessment proceedings was granted mechanically and without application of mind by the competent authority. Therefore, the question that arises from the appellant claims is that how he came to know without consulting the relevant record that the approving authority granted approval mechanically without application of mind for initiation of proceedings under section 147 read with 148 of the Act. The appellant's admission that his authorised representative officially inspected the record of the appellant for the relevant assessment year is the key factor in determining the answer. Despite official inspection of records by his A/R the appellant asserts he is not aware of the satisfaction recorded by the approving authority. Although inspection record was carried out but the appellant has failed to demonstrate the reason for his conclusion that the approval was granted mechanically and without application of mind by the approving authority. As previously sated the decisions of various case laws relied upon by the appellate are distinguishable on the facts of the present case. He cannot advance his arguments by stating that approval was granted mechanically without supporting materials. Therefore, it is concluded that the appellant has not provided any evidence to back up his assertion that approval was granted mechanically by the approving authority and therefore the contention of the appellant is hereby rejected. Hence, appeal fails on this issue. 7.1. The appellant states that the AO, assumed the jurisdiction under section 147 of the Act disregarding the fact that there was no failure on the part of the appellant to disclose the particulars of purchase plots of land in the course original assessment proceedings and accordingly present reassessment was bad in law and need to be quashed. Therefore, the issue to be addressed is whether the first proviso of section 147of the Act, as it existed before its amendment bin 2021 is applicable in the case of the appellant. To address the matter, it would beneficial to reproduce the relevant portion of section 147 of the Act. “Section 147:- If the assessing officer has reason to believe that any income chargeable to tax has escape assessment for any assessment year, he may. subject to provision of section 147 to 13 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 153 assess or reassess such income and also any other income chargeable to tax which comes to his notice subsequently in the course of the proceedings under thus section or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereinafter in the section 148 to 153 referred to as the relevant assessment year) Provided that where an assessment under sub section 3 of section 143 or this section has been made for the relevant assessment year, no action should be taken after the expiry of four years from the relevant assessment year unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to notice issued under sub section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year.\" 7.2. The record reveals that notice under section 148 of the Act was issued on 06/06/2018, which is before expiration of four years from the relevant assessment year, Furthermore, the appellant Tailed to mention in his return of income the fact that -the-stamp value of the subject land was Rs.3,75,00,00/- compared to purchase consideration of Rs.4,11,000/-. Hence there was failure on the part of the appellant to disclose primary fact of taxing in his return of income. And most importantly, the A.O. had no occasion to examine the issue in limited scrutiny proceedings. 7.3. In order to understand the issue at hand and appreciate the facts better I think it is appropriate to reproduce the relevant part of limited scrutiny assessment order passed under section 143(3) of the Act dated 23.08.2016. \"Assessment Order” \"Return of income was filed by the assessee on 31/03/2015 declaring total income of rupees Rs.38,06,600/-. Subsequently the case was selected through CASS(Limited). Notice under section 143(2) was issued on 28/08/2015 and served fixing the case for hearing on 21/09/2015. Notice under section 142(1) along with questionnaire issued and order sheet entries which are placed on record. 2. xxxxxxxxxxxxxx 3. During the year under consideration, assessee has sold two pieces of land for sale consideration price of Rs.51,60,000/- and 14 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 42,15,700/- respectively. Assessee was asked to explain as to why no capital gain is offered on the sale two properties and assessee submitted that the said properties which were sold were pieces of agricultural land. Profit on sale of these land have taken in the computation of income as exempt income and. therefore there is no liability for capital gain arises. The justification submitted by assessee was considered after examination of relevant documents. 4. Subject to the above discussion total income of assessee is computed as under. Income as retuned/assessed.\" 7.4 The order above indicates notice under section 143(2) was issued for the limited purpose of verifying the capital gain on sale of land. It is also evident that A.O'S examination of return of income and books of account for the relevant assessment year was confined to verification of capital as the jurisdiction of A.O. is confined to the issue for which notice is issued. As per instructions issued by CBDT the return selected for CASS/AIR on the basis of information contained therein then verification to be limited to that aspect only. Notice under section 142(1) to ask only for the specific information. The scope of limited scrutiny can be expanded with the approval of PCIT/PDIT. There is no indication in the said order that the A.O. expanded the scope of limited scrutiny. Therefore, the assertion of the appellant that the A O. looked into the issue discussed above is not valid. The decisions various courts referred by the appellant are not applicable in the present case as facts of those cases are not similar to the fact of this case. In light of above discussion, I am of the considered view that the A.O. is justified in in initiating the proceeding under section 147 of the Act. As a result, appeals on this issue fails. 8.1 The appellant's next issue is that the A.O. considered the subject matter in question in the limited scrutiny and therefore reopened the assessment due to simple change of opinion. It is important to determine if the A.O. formed any opinion on the issue in question. It can be observed from the limited scrutiny order referred above the officer did not examine the issue under consideration in that order, let alone make any decision about the issue, As a matter of fact, A.O. cannot go beyond the issue for which notice under section 143(2) of the Act in a limited scrutiny case. According to the limited scrutiny order, the AD confined himself to investigating the issue of capital gain arising out of sale of land. There is no evidence on record that A.O. overstepped his authority and converted the case as a complete 15 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 scrutiny case by examining the all the issued that came to his notice. It is reiterated that the A.O, did not form any opinion on the issue in question. Therefore, there is no question of A.O's change of opinion on the subject matter. 8.2 The fact of the case in which the appellant relied to present his argument do not apply to the fact of present case. In view of discussion made above I am of the considered view that the jurisdiction assumed by the under section 147 of Act does not suffer from jurisdictional defect in so far as the issue mentioned above is concerned. 9.1 The last issue regarding the validity of A.O. assumption of jurisdiction under section 147 read with 148 of the Act is to be determined based on if the A.O. was in possession of credible and tangible information to form a reasonable belief that income chargeable to tax had escaped assessment within the meaning of section 147 of the Act. The primary argument of the appellant is that the A.O. acted under section 147 of the Act solely on the basis of information received ADIT(I &C)., Raipur. Furthermore, it was argued that reason to believe was formed by the A.O. by borrowing satisfaction. 9.2. 'Information', as has been held by the courts, means communication, or reception of knowledge or intelligence. It includes information received from external sources. Thus, A.O. can use such information for formation of belief that income chargeable to tax has escaped assessment as provided under section 147 of the Act. It is crucial to determine if the A.O. applied his mind to the information so received and formed a reasonable belief that income chargeable to tax of the appellant escaped assessment within the meaning of section 147 of the Act. 9.3. The AO's application of mind to the information received is demonstrated by the elaborate reasons recorded. The officer used the information received from the ADIT(I&C), but acted independently after verification of record as is evident from the materials available on record. The reasons recorded by the A.O. clearly shows that tangible material was made the basis for formation of belief that income chargeable to tax had escaped assessment for the relevant assessment year. The A.O. established that the information he had was closely linked to formation of 'reason to believe'. The decisions of courts relied upon by the appellant can be beneficial if the facts of those cases are similar to the facts of current case. It is evident, it is not identical. Therefore, the decisions he relies on cannot save him. 16 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 9.4. In light of above discussion, the contention that the A.O. acted merely information received from ADIT(I&C), Raipur and borrowed satisfaction is rejected. It is held that the jurisdiction assumed by the A.O. under section 147 read with 148 of the Act is within legal framework. 9.5. In short, the A.O' assumption of jurisdiction under section 147 read with 148 is considered valid and in accordance with legal framework, Consequently, the grounds of appeal fails. 10.1. The appellant objected to AO's addition of Rs.3,70,89,000/- under section 56(vii)(b) of the Act ignoring the fact the plots land in question was stock-in-trade, The key issue is to determine if the land in question was a capital asset or a stock-in- trade. If it was a capital asset, the AO was justified making an addition under the said section otherwise, he was not justified in making an addition. 10.2. It was observed by the A.O that appellant did not declare the plots of land in question in his return of income for the assessment year 2012-13 to 2017-18 as stock in trade except in the return filed for the assessment year 2014-15 in response to notice issued under section 148 of the Act. Furthermore, it was observed that by the A.O. that there were no purchases or sales disclosed in the return of income for the assessment year 2012- 13 to 2017-18. The A.O analysised the return of income for the assessment year 2013-14 to determine the position of opening stock in assessment year 2014-15 and found that closing stock was shown 'nil in the assessment year 2013-14, The AO concluded that no business in real estate was carried out by the appellant as he failed to produce any evidence in support same. Hence, subject land was treated as capital asset and difference between purchase price and stamp duty value was added as income of the appellant in accordance with provisions of section 56(2)(vii) (b) of the Act. 10.3. In appellate proceedings the appellant has contested the addition made by the AO by presetting a variety of arguments and relying on a wide range of case laws. It is to be noted here that the AO made a convincing case that the subject land was not a stock in trade but capital asset. The view of the AO is supported by the fact that the appellate himself treated two pieces land as capital asset and gain arising out sale of those land was treated as long term capital gain which was claimed exempt as the land was agricultural land. In addition to that the appellant disclosed the plots of land as stock in trade in return of income and trading account and balance sheet that accompanied the return of income filed in response notice under 17 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 section 148 of the Act. It is important to mention that no opening and closing stock were show in the original return of income filed for the assessment year 2014-15. The appellant's action are merely an attempt to enhance the authencity of his claim that land in question was stock-in-trade, which in reality was capital asset. The case of the appellant cannot be advanced if it is not supported by evidence after presenting a variety of arguments and citing plethora of case laws. 10.4. Frequency of transactions, volume of transactions, entries, and treatment of books of account, intention of holding are some of the many factors determine whether any transactions on sale or purchase fall under the head from profit and gain from business or capital gain. The Hon'ble Supreme Court in the case CIT (Central), Kolkata vs Associated Industrial Development Company (P) Ltd.(82 ITR 586) observed that whether a particular holding of shares is by way investment or forms stock-in-trade, is a matter within the knowledge of the assessee, when he holds the shares and it should, in normal circumstances, be in a position to produce evidence from its record as to whether it maintained any distinction between those shares which are its stock-in-trade and those which are held by way of investment. In the appellate proceedings, the appellant has not produced any evidence to prove that purchase of plots of land was held in as stock of business. As a matter of fact. the AO overwhelmingly established that the appellant did not carry on any business in a real estate. The appellant's presumption that the plots of land were held as stock in trade of his real estate business is not sufficient and he needs to demonstrate it by producing evidence. The appellant has failed to do so. 10.5. Section 56(2) (vii)(b) of the Act stipulates that any difference between the stamp duty value and the deed value of immovable property is to be deemed to be to income for and individual and HUF wherever stamp deed value of immovable property exceeds the deed value by Rs.50,000/-. The above mentioned section deals with any property and is not restricted to any specific nature of property. The scope of that section encompasses agricultural land also. 10.6 Considering the above discussion, I am inclined to agree with the view of the AO that plots land were not held as stock of appellant's business as no business in real estate was carried out by the appellant. Therefore, the addition of Rs.3,70,89,000/-made by the AO under section 56(2)(vii) of the Act is confirmed. 18 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 11. In the final result, the appeal filed by the appellant is treated as dismissed.” 9. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. 10. We have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the Ld. AR to drive home his contentions. 11. Shri R.B Doshi, Ld. Authorized Representative (for short ‘AR’) for the assessee, submitted that as the A.O had failed to issue a valid notice u/s. 143(2) of the Act within the prescribed time period, therefore, the assessment framed by him vide his order u/s.143(3) r.w.s. 147 of the Act, dated 30.12.2019 cannot be sustained and is liable to be struck down on the said count itself. Elaborating on his contention, the Ld. AR submitted that the assessee had filed his return of income in compliance to notice u/s. 148 of the Act on 11.06.2018, Page 29 of APB. The Ld. AR submitted that as the return of income filed by the assessee was not e-verified within the stipulated time period, therefore, the same was held as invalid. Elaborating further on his contention, the Ld. AR submitted that though the assessee had as on 24.10.2019 e-verified the return of income that was 19 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 filed by him on 11.06.2018, but the same was still treated as “invalid” as the e-verification was done beyond the time period of 120 days. The Ld. AR submitted that the assessee had filed a request for condonation which had remained undisposed off till date because even the acknowledgement provided by the A.O vide his letter dated 08.07.2024 had shown the said return of income to be “invalid”. The Ld. AR submitted that the income tax portal account of the assessee itself revealed that the return of income was to be treated to be invalid till approved. Based on the aforesaid facts, the Ld. AR submitted that as no valid return of income was filed by the assessee, therefore, notice issued by the A.O u/s. 143(2) of the Act, dated 05.11.2019 i.e. before filing of the return of income was invalid in the eyes of law. The Ld. AR in support of his contention had relied on the order of the ITAT, Mumbai in the case of Sudhir Menon Vs. ACIT, ITA No.1744/Mum/2016, dated 03.10.2018. 12. Carrying his contention further, the Ld. AR submitted that the A.O had on 15.12.2019 written a letter to the assessee mentioning that the latter had failed to comply with the notice issued u/s. 148 of the Act by filing a valid return of income. The Ld. AR based on the aforesaid facts, submitted, that admittedly as per the A.O till 15.12.2019 no valid return of income was filed by the assessee. The Ld. AR submitted that in the backdrop of the aforesaid facts the assessee had, thereafter, filed a new return for the year under consideration i.e. A.Y.2014-15 on 17.12.2019, 20 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 which was e-verified on the same date and was a valid return of income filed in compliance to notice u/s.148 of the Act. The Ld. AR submitted that though no notice u/s. 143(2) of the Act was issued by the A.O after 17.12.2019, but the assessment was framed by him vide order u/s. 143(3) r.w.s.147 of the Act, dated 30.12.2019, which, thus, was illegal and bad in the eyes of law. To sum up, the Ld. AR submitted that as the assessee had filed a valid return of income in compliance to notice u/s. 148 of the Act only as on 17.12.2019, therefore, the assessment which thereafter had been framed by the A.O in absence of any notice u/s. 143(2) of the Act having been issued after filing of the said return of income was invalid and non-est in the eyes of law. 13. Alternatively, the Ld. AR submitted that as the original assessment framed by the A.O vide his order passed u/s.143(3) of the Act, dated 23.08.2016 had been reopened based on a mere “change of opinion”, therefore, the same in the backdrop of the judgment of the Hon’ble Apex Court in the case of CIT Vs. Kelvinator of India Ltd. (2010) 320 ITR 561 (SC) cannot be sustained and is liable to be struck down on the said count itself. The Ld. AR in support of his aforesaid contention had drawn our attention to the “reasons to believe”, Page 46 of APB. The Ld. AR submitted that as no new material had come to the notice of the A.O after framing of the original assessment vide his order u/s. 143(3) of the Act, dated 23.08.2016, therefore, reopening of the concluded assessment based on 21 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 the same set of facts as were available before his predecessor in the course of original assessment proceedings, being based on a mere “change of opinion” of the successor A.O was not justified and liable to be struck down for want of valid assumption of jurisdiction. Elaborating further on his contention, the Ld. AR submitted that the fact that the subject land i.e. land situated at Talapara, Bilaspur was purchased by the assessee for a consideration of Rs.4,11,000/- i.e. for a consideration lower than the FMV, for the reason that it was a disputed land, for which, a criminal case was filed against the assessee, was duly looked into by the A.O in the course of original assessment proceedings. The Ld. AR to fortify his aforesaid claim had drawn our attention to the notice issued u/s.142(1) of the Act, dated 10.06.2016, wherein the A.O in the course of the original assessment proceedings, had called upon the assessee to put forth an explanation that as to why the sale consideration of the subject property as disclosed in the return of income was less than the sale consideration as reported in the AIR, Page 35-36 of APB. Also, the Ld. AR had drawn our attention to the reply, dated 01.08.2016 that was filed by the assessee, wherein it was stated by him that as the subject land was a disputed one and a criminal case was filed against him (records produced before the A.O), therefore, the same was purchased at a value lower than the FMV, Page 37 of APB. The Ld. AR based on the aforesaid facts, submitted that as not only the fact that the subject property i.e. land situated at Talapara, Bilaspur was 22 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 purchased by the assessee at a value lower than the FMV was there before the A.O in the course of the original assessment proceedings, but was also queried by him and replied by the assessee to his satisfaction, therefore, in absence of any new facts coming to notice after framing of the original assessment, the reopening of the concluded assessment based on the same set of facts as were there before him while framing the original assessment was nothing but a mere “change of opinion, which in the backdrop of the judgment of the Hon’ble Apex Court in the case of CIT Vs. Kelvinator of India Ltd. (2010) 320 ITR 561 (SC) cannot be sustained. 14. Per contra, Shri S.L Anuragi, Ld. Departmental Representative (for short ‘CIT-DR’) relied on the orders of the lower authorities. 15. We have given a thoughtful consideration to the contentions advanced by the Ld. Authorized Representatives of both the parties in the backdrop of the orders of the lower authorities. 16. Controversy involved in the present appeal hinges around two material aspects, viz. (i) that as to whether or not the A.O had framed the assessment vide his order passed u/s.143(3) r.w.s. 147 of the Act, dated 30.12.2019 without issuing a valid notice u/s.143(2) of the Act; and (ii) that as to whether or not the A.O had reopened the concluded assessment of the assessee based on a mere “change of opinion” i.e. on the basis of the same set of facts as were available before him while framing the original 23 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 assessment vide his order passed u/s. 143(3) of the Act, dated 23.08.2016? 17. Apropos the claim of the assessee that the assessment in his case had been framed by the A.O vide his order passed u/s. 143(3) r.w.s. 147 of the Act, dated 30.12.2019 in absence of any valid notice u/s. 143(2) of the Act having been issued, the same does not find favour with us. Admittedly, it is a matter of fact borne from record that the A.O had issued notice u/s. 143(2) of the Act, dated 05.11.2019. Although, it is the Ld. AR’s claim that the return of income filed by the assessee in compliance to notice u/s., 148 of the Act on 11.06.2018 had remained unverified and, thus, was an invalid return of income, based on which, no notice u/s. 143(2) of the Act could have been issued, but we are unable to concur with the same. As is discernible from the “Screen shot” of the e-portal account of the assessee, Page 84 of APB, the return of income filed by the assessee on 11.06.2018 (supra) had thereafter been e-verified though after the due date i.e. on 24.10.2019. Accordingly, as the assessee had filed the return of income in compliance to notice u/s. 148 of the Act (wherein the provisions of the Act shall so far as may be apply accordingly as if such return were a return required to be furnished u/s.139 of the Act), therefore, the A.O had validly issued the notice u/s. 143(2) of the Act, dated 05.11.2019. Our aforesaid conviction is fortified on a perusal of Section 143(2) of the Act, as per which, where a return of income has been furnished u/s. 139 of the Act, 24 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 then the A.O, if considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner shall serve upon him a notice requiring him, on a date to be specified therein, either to attend the office of the A.O or to produce, or cause to be produced before him any evidence on which, he may rely in support of the return. Accordingly, after the return of income was e-verified by the assessee on 24.10.2019, the notice u/s. 143(2) of the Act which was thereafter issued by the A.O could not be held to be invalid. Accordingly, finding no justification in the aforesaid claim of the assessee, we reject the same. Thus, the additional Ground of appeal raised by the assessee is dismissed in terms of our aforesaid observations. 18. We shall now deal with the claim of the assessee that as the concluded assessment in his case had been reopened based on a mere “change of opinion”, therefore, the A.O in the backdrop of the judgment of the Hon’ble Apex Court in the case of CIT Vs. Kelvinator of India Ltd. (2010) 320 ITR 561 (SC), had wrongly assumed jurisdiction and framed the assessment vide his order passed u/s. 143(3) r.w.s. 147 of the Act, dated 30.12.2019. 19. Admittedly, it is a matter of fact borne from record that the A.O had vide his order passed u/s. 143(3) of the Act, dated 23.08.2016 framed the 25 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 “Original assessment” in the case of the assessee for the year under consideration i.e. A.Y.2014-15. Also, it is a matter of fact borne from record that the A.O while framing the original assessment had vide notice u/s. 142(1) of the Act, dated 10.06.2016, Page 35 & 36 of APB called upon him to put forth an explanation that as to why the sale consideration of the subject property as disclosed in the return of income was less than the sale consideration that was reported in AIR. In reply, the assessee had, inter alia, submitted before the A.O that the subject property i.e. the land situated at Telepara, Bilaspur that was purchased by him from Smt.Rudrani Bajpai for a consideration of Rs.4,11,000/- was at a value lower than the FMV, for the reason that the said land was a disputed one and a criminal case regarding the same was filed against him. Also, a perusal of the reply, revealed that the assessee had produced the criminal case records for verification before the A.O, Page 37 of APB. Based on the aforesaid facts, we concur with the Ld. AR that the A.O in the course of the original assessment proceedings had not only queried the assessee that as to why the subject property i.e. land situated at Telepara, Bilaspur was purchased by him at a value lower than the FMV, Page 35 & 36 of APB, but also the said issue was duly replied to his satisfaction by the assessee in the course of the original assessment proceedings, Page 37 of APB. For the sake of clarity, query raised by the A.O is culled out as under: (relevant extract) 26 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 “QUESTIONNAIRE SHRI RAHUL BAJPAI Annexure With regard to assessment proceedings in your case for the A.Yr.2014-15 you are required to furnish the replies to the following queries: 1. Sale consideration of the property in ITR is less than sale consideration of property reported in AIR 2. Furnish copy of computation of income. Sd/- (Ritupam Namdeo) Dy. Commissioner of Income Tax, Circle-1(1), Bilaspur” The reply filed by the assessee to the aforesaid query in the course of the original assessment proceedings is culled out as under (relevant extract): “3) The assessee duly held following land for development in future years. Land at Khaparganj was purchased for Rs.5,00,000/-. Land Form Rudrani Bajpai was purchased for Rs.4,11,000/- at a value less than the market value as the land was disputed one and criminal case is filed against the assessee. Copy of criminal case records are produced for verification. This land is also for future development and the sale of shops to be construed.” 20. We, thus, in the backdrop of the aforesaid facts, are of a firm conviction, that the concluded assessment in the case of the assessee that was originally framed by the A.O vide his order passed u/s. 143(3) of the Act, dated 23.08.2016 had, thereafter been reopened by his successor A.O 27 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 not based on any new facts coming to his notice subsequent to framing of the original assessment but on the basis of same set of facts as were there before his predecessor while framing of the original assessment vide his order passed u/s. 143(3) of the Act, dated 23.08.2016. We find that the issue based on which the case of the assessee was reopened i.e. the subject land situated at Telepara, Bilaspur was though purchased by the assessee for a consideration of Rs.4,11,000/-, but the FMV (stamp duty value) of the same was Rs.3.75 crore; was an issue that had already been looked into and deliberated upon by the A.O in the backdrop of the explanation filed by the assessee in the course of original assessment proceedings and, thereafter, accepted by him after considering the reply of the assessee as regards the same. 21. On the basis of the aforesaid facts, it can safely be gathered that the reopening of the concluded assessment of the assessee was based on the same set of facts as were available with the A.O. while framing the original assessment. To sum up, no fresh material/documents had come into the possession of the A.O. after culmination of the original assessment proceedings which would have vested with him valid jurisdiction to reopen the concluded assessment of the assessee. Our aforesaid conviction is fortified on a bare perusal of the “reasons to believe”, which reveals that the reopening of the concluded assessment of the assessee was based on a mere re-appreciation of the facts available on record by the successor A.O. 28 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 The Ld. Departmental Representative (“D.R”, for short) on being confronted with the aforesaid facts could not rebut the same. 22. Considering the fact that the case of the assessee had been reopened with the purpose to re-appreciate the facts which were already available on record, and not on the basis of any fresh material/document coming into the possession of the A.O after culmination of the original assessment by his predecessor vide his order passed u/s.143(3) dated 23.08.2016, which would reveal that any income of the assessee chargeable to tax had escaped assessment, we find substance in the Ld. AR’s claim that the A.O. had clearly traversed beyond the scope of his jurisdiction and had wrongly reopened the concluded assessment of the assessee company under Sec. 147 of the Act. In fact, we are unable to comprehend what new “material” or “information” had come up before the A.O which justified the reopening of the concluded assessment of the assessee company. We are afraid that re-appreciation of the facts already available on record before the A.O. while framing the original assessment is not permissible u/s 147 of the Act. Our aforesaid view is fortified by the judgment of the Hon'ble High Court of Bombay in the case of Asian Paints Ltd. Vs. DCIT (2008) 308 ITR 195 (Bom). The Hon’ble High Court, by drawing support from the landmark judgment of the “Full bench” of the Hon’ble High Court of Delhi in the case of CIT Vs. Kelvinator of India (2002) 256 ITR 1 (Del) [which 29 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 thereafter had been approved by the Hon’ble Apex Court in CIT Vs. Kelvinator of India (2010) 320 ITR 561 (SC)] had observed that the department cannot take recourse to the provisions of Sec. 147 of the Act for the failure of the A.O to apply his mind in the original assessment proceedings to the material which according to him, is relevant and which was available on record. Relying on the observations of the “Full bench” of the High Court of Delhi in CIT Vs. Kelvinator of India Ltd. (supra), the Hon’ble High Court of Bombay in Asian Paints Ltd. Vs. DCIT (supra), had observed that where according to the A.O he had failed to apply his mind to the relevant material in making the assessment order, he cannot take advantage of his own wrong and reopen the assessment by taking recourse to the provisions of Sec. 147. The Hon’ble High Court had further observed that fresh application of mind by the A.O to the same set of facts for the reason that some material that was available on record while framing the original assessment was inadvertently excluded from consideration would not justify reopening of the assessment u/s 147 of the Act. For the sake of clarity, the observations of the Hon’ble High Court of Bombay in the case of Asian Paints Ltd. Vs. DCIT (supra) are culled out as follows: “7. We have heard the learned counsel appearing for both sides. We have also gone through the judgments on which reliance was placed by the learned counsel appearing for both sides. 8. In the order rejecting the objection filed by the petitioner to the notice under section 148, respondent No. 1 has observed \"verification of assessment record reveals that the said details were called for but inadvertently the same were not taken into 30 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 account while framing the assessment and, therefore, it cannot be said that there is a change of opinion.\" According to respondent No. 1, thus, the relevant material was available on record, but he failed to apply his mind to that material in making the assessment order. The question is, can respondent No. 1 take recourse to the provision of section 147 for his own failure to apply his mind to the material which, according to him, is relevant and which was available on record. We find that this situation has been considered by the Full Bench of the Delhi High Court in its judgment in the case of CIT v. Kelvinator of India Ltd. [2002] 256 ITR 1 and the Full Bench has observed thus (page 19) : \"The said submission is fallacious. An order of assessment can be passed either in terms of sub-section (1) of section 143 or sub- section (3) of section 143. When a regular order of assessment is passed in terms of the said sub-section (3) of section 143 a presumption can be raised that such an order has been passed on application of mind. It is well known that a presumption can also be raised to the effect that in terms of clause (e) of section 114 of the Indian Evidence Act judicial and official acts have been regularly performed. If it be held that an order which has been passed purportedly without application of mind would itself confer jurisdiction upon the Assessing Officer to reopen the proceeding without anything further, the same would amount to giving a premium to an authority exercising quasi-judicial function to take benefit of its own wrong.\" 9. It is clear from the observations made above that the Full Bench of the Delhi High Court has taken a view that in a situation where according to the Assessing Officer he failed to apply his mind to the relevant material in making the assessment order, he cannot take advantage of his own wrong and reopen the assessment by taking recourse to the provisions of section 147. We find, ourself, in respectful agreement with the view taken by the Full Bench of the Delhi High Court. 10. It is further to be seen that the Legislature has not conferred power on the Assessing Officer to review its own order. Therefore, the power under section 147 cannot be used to review the order. In the present case, though the Assessing Officer has used the phrase \"reason to believe\", admittedly between the date of the order of assessment sought to be reopened and the date of formation of opinion by the Assessing Officer, nothing new has happened, therefore, no new material has come on record, no new information has been received, it is merely a fresh application of mind by the same Assessing Officer to 31 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 the same set of facts and the reason that has been given is that the some material which was available on record while assessment order was made was inadvertently excluded from consideration. This will, in our opinion, amount to opening of the assessment merely because there is change of opinion. The Full Bench of the Delhi High Court in its judgment in the case of Kelvinator [2002] 256 ITR1 referred to above, has taken a clear view that reopening of assessment under section 147 merely because there is a change of opinion cannot be allowed. In our opinion, therefore, in the present case also, it was not permissible for respondent No. 1 to issue notice under section 148. 11. In the result, therefore, petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (a) with no order as to costs.” (emphasis supplied by us) 23. At this stage, it would be relevant to point out that the view taken by the “Full bench” of the Hon’ble High Court of Delhi in CIT Vs. Kelvinator of India (2002) 256 ITR 1 (Del), that the failure of the A.O to consider certain material that was available on record while framing the original assessment cannot justify the reopening of its concluded assessment, as the same would amount to opening of the assessment on the basis of a “change of opinion”, which is not allowed as per the mandate of law, had thereafter been approved by the Hon’ble Apex Court in CIT Vs. Kelvinator of India (2010) 320 ITR 561 (SC). The observations of the “Full bench” of the Hon’ble High Court of Delhi in CIT Vs. Kelvinator of India (2002) 256 ITR 1 (Del), which thereafter had been approved by the Hon’ble Apex Court in (2010) 320 ITR 561, are culled out as under (relevant extract): 32 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 \"10. It is further to be seen that the legislature has not conferred power on the AO to review its own order. Therefore, the power under s. 147 cannot be used to review the order. In the present case, though the AO has used the phrase \"reason to believe\", admittedly between the date of the order of assessment sought to be reopened and the date of formation of opinion by the AO, nothing new has happened, therefore, no new material has come on record, no new information has been received; it is merely a fresh application of mind by the same AO to the same set of facts and the reason that has been given is that the some material which was available on record while assessment order was made was inadvertently excluded from consideration. This will, in our opinion, amount to opening of the assessment merely because there is change of opinion. The Full Bench of the Delhi High Court in its judgment in the case of Kelvinator (supra) referred to above, has taken a clear view that reopening of assessment under s. 147 merely because there is a change of opinion cannot be allowed. In our opinion, therefore, in the present case also, it was not permissible for respondent No. 1 to issue notice under s. 148\". 24. We, thus, based on our aforesaid observations are of the view that as the concluded assessment of the present assessee that was originally framed by the A.O vide his order passed u/s. 143(3) of the Act, dated 23.08.2016 had been reopened by successor A.O based on the same set of facts as were there before his predecessor and were looked into and deliberated upon by him in the course of the original assessment proceedings, and not on the basis of any fresh material coming to his notice after framing of the original assessment, therefore, the same is based on a mere “change of opinion”, which as pointed out by the Ld. AR and, rightly so, as per the ratio of the judgment of the Hon’ble Apex Court in CIT Vs. Kelvinator of India (2010) 320 ITR 561 (SC) is not permissible, thus, cannot be sustained and is liable to be quashed. 33 Rahul Bajpai Vs. ACIT, Circle-1(1), Bilaspur ITA No. 348/RPR/2023 25. As we have quashed the assessment order for want of valid assumption of jurisdiction by the A.O, therefore, we refrain from adverting to and therein dealing with the other contentions raised by both the parties qua the merits of the case, which, thus, are left open. 26. In the result, appeal of the assessee is partly allowed in terms of our aforesaid observations. Order pronounced in open court on 20th day of January, 2025. Sd/- Sd/- ARUN KHODPIA RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायपुर/ RAIPUR ; Ǒदनांक / Dated : 20th January, 2025. ***SB, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The Pr. CIT, Raipur-1 (C.G) 4. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, रायपुर बɅच, रायपुर / DR, ITAT, Raipur Bench, Raipur. 5. गाड[ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलȣय अͬधकरण, रायपुर / ITAT, Raipur. "