ROYAL INFRASTRUCTURE V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1(2)(1)

SCA/20078/2018

AI Insights

The case involves Royal Infrastructure challenging a notice issued by the Deputy Commissioner of Income Tax to reopen their assessment for the year 2012-13 under section 148 of the Income Tax Act. The petitioner had initially claimed a deduction under section 80IB(10) for a housing project, which was scrutinized and accepted in the original assessment. However, the Deputy Commissioner later sought to reopen the assessment, alleging that the deduction was improperly claimed as it involved multiple units being sold to the same individuals or their spouses, which contravened the conditions of section 80IB(10). The court found that the reopening was based on a mere change of opinion and that all material facts had been disclosed during the original assessment.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 771269 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 29-04-2019
• Assessment Year: misc
• Other Referred Cases: Dishman Pharmaceuticals and Chemicals Limited v. Deputy Commissioner of Income-Tax (OSD) (No.1), Phool Chand Bajrang Lal and Another v. Income-Tax Officer and another, Cliantha Research Ltd. v. Deputy Commissioner of Income-tax
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: VARUN PATEL
• Assessee Lawyers: MANISH SHAH
• Keywords: Deduction under section 80IB; Full and True Disclosure; Income tax reassessment; Reopening of assessment
• Section: 148; 142(1); 143(2); 80IB; 80IB(10)

Judgement Text

"C/SCA/20078/2018 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 20078 of 2018 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE HARSHA DEVANI 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 ? ========================================================== ROYAL INFRASTRUCTURE Versus DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1(2)(1) ========================================================== Appearance: MR MANISH J SHAH(1320) for the Petitioner(s) No. 1 MR.VARUN K.PATEL(3802) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 29/04/2019 ORAL JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) Page 1 of 24 C/SCA/20078/2018 JUDGMENT 1. By this petition under article 226 of the Constitution of India, the petitioner has challenged the notice dated 28.03.2018 issued by the respondent under section 148 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) whereby, the respondent proposes to reopen the assessment of the petitioner for the assessment year 2012­13. 2. The facts stated briefly are that the petitioner had submitted its return of income for assessment year 2012­13 on 04.08.2012 computing the gross total income at Rs.1,16,49,400/­ and claiming deduction of Rs.35,99,664/­ under section 80IB of the Act resulting into total income of Rs.86,23,123/­. The petitioner also filed an audit report under section 44AB of the Act in Form No.3CB and Form No.10CCB being the audit report for claiming deduction under section 80IB of the Act. Thereafter, the case of the petitioner was selected for scrutiny assessment and a notice dated 12.08.2013 came to be issued to the petitioner under section 143(2) of the Act. The Assessing Officer again issued another notice dated 19.05.2014 under section 143(2) of the Act calling upon the petitioner to furnish audited balance­sheet and income­tax return, which was complied with by the petitioner vide its letter dated 27.05.2014. The respondent Page 2 of 24 C/SCA/20078/2018 JUDGMENT issued another notice dated 12.09.2014 under section 142(1) of the Act asking for details, wherein at point No.13, he had specifically asked the petitioner to justify the deduction under Chapter­VI and had also asked the petitioner to submit necessary details with regard to its claim of deduction under section 80IB(10) of the Act. The petitioner complied with the above notice vide letters dated 07.10.2014 and 15.10.2014. The petitioner also submitted complete details of the buyers, who had purchased flats in Springwood Residency project in a tabular form vide point No.3 to its reply dated 15.10.2015. After considering the replies filed by the petitioner, the Assessing Officer passed an order under section 143(3) of the Act on 04.02.2015 accepting the return of income. 3. Subsequently, the respondent issued the impugned notice dated 28.03.2018 under section 148 of the Act seeking to reopen the assessment of the petitioner for assessment year 2012­13. In response to the said notice, the petitioner addressed a letter dated 11.04.2018 requesting the respondent to consider the return filed on 04.08.2012 as the return filed in response to the notice under section 148 of the Act. Thereafter, the petitioner received notices dated 20.08.2018 under sections 143(2) and 142(1) of the Act. The Page 3 of 24 C/SCA/20078/2018 JUDGMENT notice under section 142(1) of the Act was also accompanied by an annexure wherein, the respondent had reproduced the reasons recorded for reopening the assessment. 4. In response to the said notice, the petitioner raised its objections vide letter dated 09.12.2018. By an order dated 11.12.2018, the respondent rejected the objections raised by the petitioner. Being aggrieved, the petitioner has filed the present petition. 5. Mr. Manish Shah, learned advocate for the petitioner, submitted that in this case, the Assessing Officer seeks to reopen the assessment for assessment year 2012­13 by issuing the impugned notice dated 28.03.2018, which is clearly beyond a period of four years from the end of the relevant assessment year and, therefore, in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment, the assumption of jurisdiction on the part of the Assessing Officer is invalid. 5.1 It was submitted that on a plain reading of the reasons recorded for reopening the assessment, it is evident that the Assessing Officer seeks to reopen the assessment on the Page 4 of 24 C/SCA/20078/2018 JUDGMENT basis of the material which was already available on record. It was pointed out that during the course of assessment proceedings, the Assessing Officer had called for various details from the petitioner in respect of the deduction claimed under section 80IB(10) of the Act. Attention was invited to the statement showing details of the buyers of Springwood Residency­I project executed by the petitioner, to point out that details of all the purchasers, along with the addresses as well as PAN, had been duly furnished to the Assessing Officer. It was submitted that after perusing the details furnished by the petitioner, the Assessing Officer did not deem it fit to disallow the deduction under section 80IB(10) of the Act and hence, the reopening of assessment on the part of the Assessing Officer is based upon a mere change of opinion. 5.2 It was further submitted that during the assessment proceedings, the entire focus of the scrutiny was in respect of the deduction claimed under section 80IB(10) of the Act, in respect of which the Assessing Officer had called for complete details and after perusal of the same, had allowed the deduction. It was submitted that since the reopening of assessment is based upon material which was already available on record, it cannot be said that there is any failure on Page 5 of 24 C/SCA/20078/2018 JUDGMENT the part of the petitioner to disclose fully and truly all material facts necessary for its assessment and, hence, the reopening of assessment, after a period of four years from the end of the relevant assessment year, is without authority of law. 6. Opposing the petition, Mr. Varun Patel, learned Senior Standing Counsel for the respondent, submitted that in this case seven flats had been sold either to family members or to the same individual and hence, the petitioner was not entitled to claim deduction under section 80IB(10) of the Act. Referring to clauses (e) and (f) of section 80IB(10) of the Act, it was submitted that the same provides that more than one residential unit in a housing project cannot be allotted to any one individual. Moreover, deduction under section 80IB(10) of the Act cannot be claimed wherein more than one residential unit has been allotted to an individual or the spouse or to the minor children of such individual. It was submitted that in this case as many as seven residential units have been allotted in contravention of clauses (e) and (f) of section 80IB(10) of the Act and hence, the Assessing Officer was wholly justified in reopening the assessment as income chargeable to tax had escaped assessment. Page 6 of 24 C/SCA/20078/2018 JUDGMENT 6.1 It was submitted that the burden lies upon the assessee to claim only such deduction as is admissible, whereas in this case, the assessee has claimed deduction under section 80IB(10) of the Act despite the fact that more than one residential unit had been sold either to the same individual or to an individual and his spouse, which proves that the assessee has made a false claim. Referring to Explanation 1 to section 147 of the Act, it was submitted that the said explanation provides that production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. It was submitted that in this case, Explanation 1 would be attracted, as there is failure on the part of the petitioner to disclose that more than one residential unit had been sold either to the same individual or to related parties. According to learned Senior Standing Counsel, in the absence of any such disclosure, the Assessing Officer had not formed an opinion that the condition precedent for claiming deduction under section 80IB(10) of the Act had been satisfied, and, therefore, there is no change of opinion and the impugned notice is well Page 7 of 24 C/SCA/20078/2018 JUDGMENT within the parameters laid down under sections 147 and 148 of the Act. 6.2 In support of his submissions, the learned senior standing counsel placed reliance upon the decision of this court in the case of Dishman Pharmaceuticals and Chemicals Limited v. Deputy Commissioner of Income­Tax (OSD) (No.1), (2012) 346 ITR 228 (Guj), wherein the court, in the context of clause (22) of section 2 of the Act had held that by simply stating that the petitioner company holds certain shares in SDBL, the duty to truly and fully disclose all material facts necessary for assessment of the income was not discharged; particularly viewed from the Explanation 1 to section 147. It was submitted that in this case by merely submitting a list of purchasers, without disclosing that they were related to each other, it cannot be said that the petitioner had discharged the duty to fully and truly disclose all material facts necessary for its assessment. 6.3 Reliance was also placed upon the decision of Supreme Court in case of Phool Chand Bajrang Lal and Another v. Income­Tax Officer and another, (1993) 203 ITR 456, wherein it has been held that one of the purposes of section 147 of the Act appears to be to ensure that a party cannot get Page 8 of 24 C/SCA/20078/2018 JUDGMENT away by willfully making a false or untrue statement at the time of the original assessment and when that falsity comes to notice, to turn around and say: “You accepted my lie, now your hands are tied and you can do nothing.” would be a travesty of justice to allow the assessee that latitude. 6.4 It was further submitted that in the present case, the petitioner has failed to disclose that out of the persons who had purchased the units, seven purchasers were related parties and had thereby, not disclosed material facts necessary for its assessment. It was submitted that mere submission of details of purchasers would not amount to a full and true disclosure as envisaged under section 147 of the Act and, therefore, Explanation 1 to section 147 of the Act would be clearly attracted in the present case. It was submitted that therefore, the Assessing Officer has not committed any error in seeking to reopen the assessment of the petitioner beyond a period of four years from the end of the relevant assessment year. 7. In rejoinder, Mr. Manish Shah, learned advocate for the petitioner, invited the attention of the court to Form No.3CD, which is a statement of particulars required to be furnished Page 9 of 24 C/SCA/20078/2018 JUDGMENT under section 44AB of the Act and more particularly, to item No.26 thereof, which relates to deductions under Chapter VIA of the Act. Reference was made to Form No.10CCB, which is the audit report under section 80IB of the Act and more particularly, to item No.23 thereof, which relates to development and construction of housing projects, to submit that details as required under the Act and the rules had been duly furnished by the petitioner. It was submitted that there is no column in the said forms, which require the petitioner to state as to whether the purchasers are related parties. It was submitted that apart from the details which had been furnished together with the return of income, the Assessing Officer, during the course of assessment proceedings, had called for further details, all of which had been furnished by the petitioner, including the details of purchasers. Referring to the statement showing the details of buyers, it was submitted that the names of related parties are in seriatim and bear the same address and hence, there was no failure on the part of the petitioner to disclose truly and fully all material facts necessary for its assessment. 7.1 It was submitted that the only issue in respect of which deduction was claimed by the Page 10 of 24 C/SCA/20078/2018 JUDGMENT petitioner was under section 80IB(10) of the Act and the Assessing Officer had called for and scrutinized all details. It was submitted that under the circumstances, there being no failure on the part of the petitioner to disclose truly and fully all material facts, the reopening of assessment beyond a period of four years is without authority of law. 8. In the aforesaid backdrop, the validity of the proceedings under section 147 of the Act which have been initiated by issuing the impugned notice under section 148 of the Act has to be examined. In this regard it may be germane to refer to the reasons recorded for reopening the assessment, a perusal whereof reveals that according to the Assessing Officer, it has been found that (i) deduction of Rs.86,23,123/­ was claimed under section 80IB(10) of the Act for Springwood Residency­I Project; (ii) the petitioner had submitted the details of buyers, which revealed that the petitioner had sold residential units to, in all, seven parties, who were spouses or had more than one residential unit in the same project, as proved by the addresses given by the buyers at the time of booking. Thus, the assessee had not fulfilled the condition for claiming deduction under section 80IB(10) of the Act. The Assessing Officer has Page 11 of 24 C/SCA/20078/2018 JUDGMENT recorded that from the information and details, coupled with the provisions of law for eligibility of deduction allowable under section 80IB(10) of the Act, it is revealed that the assessee has not disclosed full and true material facts necessary for assessment, as the assessee has not offered full and true details regarding profit from business for the purpose of taxation. One of the reasons for coming to the conclusion that there was no true and full disclosure is that the assessee had furnished untrue audit report in Form No.10CCB certified on 25.08.2012 stating the deduction claimed under section 80IB(10) of the Act. 9. In this case, the assessment year is 2012­13 and the notice under section 148 of the Act has been issued on 28.03.2018, which is clearly beyond a period of four years from the end of the said assessment year. Since earlier an assessment was framed under section 143(3) of the Act, the first proviso to section 147 of the Act would come into play which inter alia provides that no action can be taken under that section unless income chargeable to tax has escaped assessment by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, for that assessment year. Page 12 of 24 C/SCA/20078/2018 JUDGMENT 10. Therefore, the question that arises for consideration is whether there was any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment. In this regard it may be pertinent to note that in the objections raised by the petitioner, it had requested the Assessing Officer vide its letter dated 06.12.2018 to furnish a copy of the order sheet notings maintained by the then Assessing Officer during the time of the original scrutiny assessment. It was submitted that the Assessing Officer had called for specific details during the course of the original scrutiny assessment which were necessary for scrutinizing the claim of deduction under section 80IB(10) of the Act and in response thereto, the petitioner furnished extensive details regarding all the buyers. Therefore, the allegation that there was no full and true disclosure of all material facts is not in order. It was further submitted that the Assessing Officer noted the details of the seven purchasers mentioned in the reasons recorded from the details called for during the original scrutiny assessment. Such details were furnished by the assessee vide its letter dated 15.10.2014, which included the list of residential units sold by the assessee along with the name and addresses, Page 13 of 24 C/SCA/20078/2018 JUDGMENT PAN, date of booking, full schedule of payment with cash / cheque, total consideration amount, date of documentation, registration number of document, built up area, super built up area, carpet area and flat no., etc. In the order dated 11.12.2018 dealing with the objections raised by the petitioner, the Assessing Officer has stated that the assessee has cited judicial decisions which have been considered; that the case has been reopened by issuance of notice under section 148 of the Act after duly recording the requisite reasons and taking prior approval from the Principal Commissioner of Income­tax and duly serving the assessee and that it is well within six years from the end of the relevant assessment year and therefore, the reopening of the case is technically and legally valid. The Assessing Officer had further stated that the revenue had reason to believe that income to the extent of Rs.86,23,123/­ chargeable to tax had escaped assessment and has concluded that the case is correctly opened as per the reasons recorded. In this regard it may be pertinent to note that on a perusal of the objections raised by the petitioner, it is evident that there is no reference to any judicial decisions therein, therefore the question of considering the same did not arise. In the objections raised by the petitioner, though the sole ground was that there Page 14 of 24 C/SCA/20078/2018 JUDGMENT is no failure on the part of the petitioner to disclose full and true material facts necessary for its assessment for the year under consideration as the reopening itself is based on the material furnished by the petitioner during the course of scrutiny proceedings pursuant to the Assessing Officer having called for the details, there is not even a whisper in that regard in the order disposing of the objections. Thus, the Assessing Officer has not dealt with the sole objection raised by the petitioner and has side­stepped the entire issue. 11. In the affidavit­in­reply filed by the respondent in response to the petition, it is stated that the petitioner had wrongly claimed deduction under section 80IB(10) of the Act with respect to the project in question. It is further averred that the material fact namely, selling of more than one residential unit to spouse and the same individual was never disclosed by the assessee in the original return or at the time of scrutiny assessment and that from the reply of the assessee, it is not clear that the assessee had sold more than one residential unit to spouse and to the same individual in contravention of section 80IB(10) of the Act. 12. In the context of the allegation that there Page 15 of 24 C/SCA/20078/2018 JUDGMENT is failure on the part of the petitioner to disclose fully and truly all material facts for the assessment, it may be germane to refer to the relevant statutory provisions and the details furnished by the petitioner. Rule 18BBB of the Income Tax Rules, 1962 provides for form of audit report for claiming deduction under sections 80I or 80IA or 80IB or 80IC of the Act. The said rule inter alia provides that the report of audit of the accounts of an assessee shall be in Form 10CCB. A perusal of Form No.10CCB, to the extent that the same relates to eligible business under section 80­IB in respect of developing and building housing projects reveals that there is no column which requires the assessee to state as to whether in a case where a residential unit in a housing project is allotted to a person, being an individual, no other residential unit in such project is allotted to any person, namely, (i) the individual or the spouse of the minor children of such individual (ii) the Hindu undivided family in which such individual is the karta (iii) any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided family in which such individual is the karta. 13. Prior to its amendment vide Finance Act, 2009, clauses (e) and (f) of section 80IB(10) of Page 16 of 24 C/SCA/20078/2018 JUDGMENT the Act, did not find place in the statute book. Clauses (e) and (f) were inserted by Finance (No.2) Act, 2009 with effect from 01.04.2010. However, even after such amendment, no changes have been made in Form No.10CCB to incorporate the requisite details in terms of the amended provisions. Therefore, the Act and the rules framed thereunder do not provide for the assessee to specifically furnish such details along with the return of income. Therefore, in the absence of any column for furnishing such details in Form No.10CCB, it was not possible for the petitioner to incorporate such details therein. 14. Nonetheless, during the course of the original scrutiny proceedings, the Assessing Officer did call for various details from the assessee, including details of the purchasers, their names, addresses with PAN, etc., which were duly furnished by the petitioner. From the information called for by the Assessing Officer while issuing notice under section 142(1) of the Act, it emerges that he had called for details of deductions claimed under Chapter VI­A and had also enquired from the petitioner as to whether it has fulfilled the necessary criteria required for deduction under section 80IB(10) of the Act and to submit details and copies. In response to such notice, the petitioner replied that Page 17 of 24 C/SCA/20078/2018 JUDGMENT deduction claimed under Chapter VI­A was Rs.86,23,123/­. It appears that pursuant to the details called for by the Assessing Officer, the assessee, vide letter dated 15.10.2014, inter alia furnished the following details: (i) Statement in tabular form showing the details of buyers of Springwood Residency 1 Project of the entire 10 towers (160 flats, i.e. 96 3BHK and 64 2BHK flats) sold by Royal Infrastructure during the entire period of the Project i.e. F.Y. 2006­07 to F.Y. 2012­13 as desired by him in the last hearing held on 13.10.2014 and marked as Annexure­3. (ii) Brochure of Springwood Residency 1 Project and marked as Annexure­6. (iii) Audit Report in Form 10CCB for A.Y. 2012­13 and marked as Annexure­7. 15. The petitioner had also furnished a statement showing the details of buyers, which included their names and addresses with PAN, income tax jurisdiction of the purchaser, date of booking, full schedule of payment with cash/cheque, total consideration amount, date of documentation, RRR No. of the document made with the office address of document made, built up area/super built up Page 18 of 24 C/SCA/20078/2018 JUDGMENT area, carpet area and Flat No. A perusal of the statement shows that the names of the purchasers are serial wise and the names of the individual and spouse are in seriatim, and have the same address from which it is easily discernable that the parties are spouses. Thus, it appears that the Assessing Officer while scrutinizing the eligibility for deduction under section 80IB(10) of the Act, has failed to examine the issue from the angle of clauses (e) and (f) thereof despite the fact that all the relevant material was before him. 16. In the opinion of this court, since the form prescribed under the rules does not require the assessee to state whether more than one residential unit in the housing project is allotted to any person not being an individual; and in case where a residential unit in the housing project is allotted to a person being an individual, no other residential unit in such housing project is allotted to any of the following persons, namely:­ (i) the individual or the spouse or the minor children of such individual, (ii) the Hindu undivided family in which such individual is the karta, Page 19 of 24 C/SCA/20078/2018 JUDGMENT (iii) any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided family in which such individual is the karta, 17. Therefore, it cannot be said that the petitioner has failed to disclose fully and truly all material facts necessary for its assessment. Besides, during the course of scrutiny assessment the Assessing Officer did call for further details for the purpose of examining the claim for deduction under section 80IB(10) of the Act, which were duly furnished by the petitioner. A perusal of the names and details of the purchasers as furnished by the petitioner makes it clear that in case of seven parties, units had been purchased either by spouses or the same individual had purchased two residential units. Therefore, though all the facts were before him, the Assessing Officer did not examine the claim for deduction under section 80IB(10) of the Act from this angle. 18. On a plain reading of section 80IB(10) of the Act, it is amply clear that one of the basic requirements for being eligible to claim deduction under section 80IB(10) of the Act as stipulated under clauses (e) and (f) thereof is Page 20 of 24 C/SCA/20078/2018 JUDGMENT that not more than one residential unit in the housing project can be allotted to any person not being an individual and in a case where a residential unit in a housing project is allotted to a person being an individual, no other residential unit in such housing project is allotted to the individual or his spouse, etc. Though the Assessing Officer had the opportunity to call for information as regards compliance of clauses (e) and (f) of section 80IB(10) of the Act, he, however, did not deem it fit to call for specific information to that effect from the petitioner and proceeded to assess the petitioner on the basis of the material before him. Under the circumstances, when the petitioner had disclosed all the material facts necessary for his assessment, but the Assessing Officer failed to consider the claim for deduction under section 80IB(10) of the Act in the context of clauses (e) and (f) thereof, it cannot be said that there was any failure on the part of the petitioner to disclose truly and fully all material facts necessary for its assessment. 19. This court in the case of Cliantha Research Ltd. v. Deputy Commissioner of Income­tax,[2014] 225 Taxman 102 (Gujarat), was dealing with a case where the assessee had made a claim for deduction under section 80IB(8A) of the Act which was Page 21 of 24 C/SCA/20078/2018 JUDGMENT thoroughly examined by the Assessing Officer during the course of scrutiny assessment wherein the Assessing Officer had raised various queries which were replied by the assessee. He, however, did not raise any specific query as regards the allowability of the claim on the premise that the petitioner was doing scientific research for and on behalf of companies. The court held that merely for failure of the Assessing Officer to raise such question would not authorise him to reopen the assessment even within a period of four years from the end of the relevant assessment year as any such attempt on his part would be based on mere change of opinion. The court held that when a claim was processed at length after calling for detailed explanation from the assessee, and the same was accepted, merely because a certain element or angle was not in the mind of the Assessing Officer while accepting such a claim, cannot be a ground for issuing notice for reassessment. This decision would be squarely applicable to the facts of the present case. In this case also, during the course of scrutiny assessment, the Assessing Officer examined the claim for deduction under section 80IB(10) of the Act in detail and raised several queries and after processing such claim accepted the same. He, however, failed to examine the claim in the context of clauses (e) Page 22 of 24 C/SCA/20078/2018 JUDGMENT and (f) thereof. Thus, merely because while examining the claim under section 80IB(10) of the Act, a certain angle was not in the mind of the Assessing Officer would not be a good ground for reopening the assessment as the same would amount to a mere change of opinion. 20. Since in the present case, the assessment is sought to be reopened beyond a period of four years from the end of relevant assessment year, in the absence of any failure on the part of the petitioner to disclose truly and fully all material facts necessary for its assessment, the basic requirement for taking action under section 147 of the Act as postulated in the first proviso thereto, is not satisfied. Moreover, as discussed hereinabove, during the course of scrutiny assessment, the Assessing Officer had examined the claim for deduction under section 80IB(10) of the Act in detail, therefore, merely because he did not examine such claim from the angle of clauses (e) and (f) thereof, would not be a valid ground for reopening the assessment as it would amount to a mere change of opinion. Under the circumstances, the assumption of jurisdiction by the Assessing Officer under section 147 of the Act, by issuing notice under section 148 of the Act is invalid, which renders the impugned notice unsustainable. Page 23 of 24 C/SCA/20078/2018 JUDGMENT 21. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned notice dated 28.03.2018 issued by the respondent under section 148 of the Act seeking to reopen the assessment of the petitioner for the assessment year 2012­13 is hereby quashed and set aside. Rule is made absolute with no order as to costs. (HARSHA DEVANI, J) (BHARGAV D. KARIA, J) PRAVIN KARUNAN Page 24 of 24 "