SRI SUBODH AGARWAL V. PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, KANPUR AND 2 OTHERS

WTAX/1290/2022

AI Insights

The case involves Subodh Agarwal, the petitioner, who challenged the notices and orders issued for reassessment of his income tax returns under Sections 148A(b) and 148 of the Income Tax Act, 1961. The reassessment was initiated following a search and seizure operation at the petitioner's premises and subsequent audit objections indicating that substantial income had escaped assessment. The petitioner argued that the issues raised had been previously addressed in earlier assessments and that the reassessment constituted a mere change of opinion. However, the court found that the audit objections provided new information suggesting that income had indeed escaped assessment, thus justifying the reassessment under the Act.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 685495 (HC-ALLAHABAD)
• Appeal Type: Others
• Pronouncement Date: 25-01-2023
• Assessment Year: misc
• Other Referred Cases: Ram Ballabh Gupta Vs. Assistant Commissioner of Income Tax and others, Cargo Clearing Agency vs. Joint Commissioner of Income Tax, Commissioner of Income Tax vs. Kelvinator of India Ltd, Reckit Benckiser Healthcare India Pvt. Ltd. vs. Deputy Commissioner of Income Tax, Principal Commissioner of Income Tax vs. Meenakshi Overseas Pvt. Ltd, Anshul Jain Vs. Principal Commissioner of Income Tax and another, Krishna Developers and Company vs. Deputy Commissioner of Income-tax, CIT Vs. Vishal Gupta, Raymond Woollen Mills Ltd. Vs. ITO and others, Assistant Commissioner of Income Tax Vs. Rajesh Jhaveri Stock Brokers P. Ltd.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: GAURAV MAHAJAN
• Assessee Lawyers: DHRUVA AGRAWAL; SHUBHAM AGRAWAL
• Keywords: Audit objection; Income chargeable to tax has escaped assessment; Re-assessment; Search and seizure
• Section: 148; 153A; 149; 151; 148A(b)

Judgement Text

"HIGH COURT OF JUDICATURE AT ALLAHABAD *** WRIT TAX No. -1290 of 2022 Pronounced on : January 25, 2023 Subodh Agarwal ...Petitioner Through : Mr. Dhruva Agrawal, Senior Advocate with Shubham Agrawal, Advocate v/s State of U.P. and others ...Respondents Through : Mr. Gaurav Mahajan, Senior Standing Counsel for Income Tax Department CORAM : HON'BLE RAJESH BINDAL,CHIEF JUSTICE HON’BLE J. J. MUNIR, JUDGE ORDER 1. The petitioner has approached this Court praying for quashing of notice dated March 28, 2022 (Annexure-13) issued under Section 148A(b) of the Income Tax Act, 1961 (for short ‘the Act’), notice dated April 24, 2022 (Annexure-15) issued under Section 148 of the Act and order dated April 24, 2022 passed by respondent no. 2 rejecting the objections raised by the petitioner against issuance of notice under Section 148A(b) of the Act. Further prayer has been made for dropping the re-assessment proceedings initiated in Chief Justice's Court Serial No. 3038 2 WTAX No. -1290 of 2022 pursuance of notice under Section 148(1) of the Act. 2. Mr. Dhruva Agrawal, learned Senior Counsel appearing for the petitioner submitted that search was carried out at the premises of the petitioner on August 31, 2015. A show cause notice was issued on June 1, 2016 under Section 153A of the Act for block assessment. The order of assessment was passed on December 31, 2017, which was challenged by the petitioner as well as the Department before the Income Tax Tribunal. The appeal filed by the petitioner was accepted whereas the one filed by the Department was dismissed. The order was further challenged by the Department by filing an appeal before this Court, which was dismissed vide order dated December 12, 2022. 3. After passing of the order under Section 153A of the Act, during pendency of the appeal against the aforesaid order, a show cause notice was issued to the petitioner on March 28, 2022 under Section 148A(b) of the Act, which was duly replied to by the petitioner. Rejecting the objection raised by the petitioner, order was passed on April 24, 2022 granting sanction for initiation of proceedings against the petitioner under Section 148A(d) of the Act and consequently, a notice was also issued on April 24, 2022. Initiation of proceedings under Section 148 of the Act is subject matter of challenge in the present writ petition. 4. Referring to scheme of the Act, Mr. Agrawal, learned Senior Counsel pointed out that special procedure has been prescribed in the Act for framing of assessment/re-assessment in cases of search and seizure. Chapter XIV-B was added. Subsequently, Section 153A was added with effect from June 1, 2003. Second proviso to Section 153A provides that any proceeding pending for assessment/re-assessment for the relevant period on the date of initiation of the search under Section 132 or requisition under Section 132A shall abate. In the case in hand also, after the assessment was framed under Section 153A, as a consequence of search, all pending proceedings abated. Section 149 of the Act was 3 WTAX No. -1290 of 2022 referred to, which provides for limitation for issuance of notice under Section 148 of the Act. As assessment of the petitioner had already been framed under Section 153A of the Act, which is comprehensive and framed, after taking approval from the higher authorities, the assessment for the same year cannot be reopened by issuing notice under Section 148 of the Act. In support of the arguments, reliance was placed upon judgments of Madhya Pradesh High Court in Ram Ballabh Gupta Vs. Assistant Commissioner of Income Tax and others1 and Gujarat High Court in Cargo Clearing Agency vs. Joint Commissioner of Income Tax2. 5. As far as merits of the controversy and challenge to the order granting permission for issuance of notice under Section 148 of the Act are concerned, it was submitted that the grounds mentioned in the order granting approval for the show cause notice is nothing else but change of opinion. In support of the argument, reliance was placed upon judgment of Hon’ble the Supreme Court in Commissioner of Income Tax vs. Kelvinator of India Ltd3. At the time of block assessment after search was carried out all the issues and the material available, were considered. In fact, the entire process started after an audit objection, to which reply was given by the assessee explaining the reasons as to why the objection raised by the audit was not tenable. There was no fresh material available. Initiation of proceedings under Section 148 of the Act are bad on the ground of audit objection only. In support of the arguments, reliance was placed on judgments of Gujarat High Court in Reckit Benckiser Healthcare India Pvt. Ltd. vs. Deputy Commissioner of Income Tax4 and Delhi High Court in Principal Commissioner of Income Tax vs. Meenakshi Overseas Pvt. Ltd.5 1 (2005) 199 CTR 2 (2008) 218 CTR 3 (2010) 228 CTR (SC) 488 4 (2017) 392 ITR 336 5 (2017) 395 ITR 677 4 WTAX No. -1290 of 2022 6. In response, learned counsel for the Revenue submitted that in terms of the amended provisions of Clause(ii) to second proviso of Explanation 1 of Section 148 of the Act specific mention has been made as to what shall form information with the Assessing Officer, which would suggest that ‘income chargeable to tax has escaped assessment’. Audit objection has been mentioned as one of them. The aforesaid amendment was introduced with effect from April 1, 2022. Prior to that, the aforesaid proviso provided for objection raised by the Comptroller and Auditor General of India (hereinafter referred to as ‘CAG’). In the case in hand as well, there was an objection raised by the Audit specifying that huge income had escaped assessment as the text messages exchanged by the petitioner with various parties have not at all been considered while framing the assessment. This has caused huge loss to the revenue as the income chargeable to the tax had escaped assessment. 7. The objection raised by the Auditor was not treated as information prior to the amendment of Section 148 with effect from April 1, 2022. 8. It is merely a show cause notice to the petitioner at this stage. His preliminary objection against the same has already been considered and rejected. During course of assessment proceeding, the petitioner will have fair opportunity to raise all objections, in the proceedings initiated against him, who has been able to defraud the revenue to the tune of crores of rupees. These proceedings should not be scuttled at the very threshold. In terms of the second proviso to Section 153A of the Act, only pending proceeding abates. The section does not talk about proceedings to be initiated later on. The present case was not a case of re-assessment under Section 153A of the Act; rather it was assessment framed. He further referred to judgment of Punjab and Haryana High Court in CWP No. 10219 of 2022 titled as Anshul Jain Vs. Principal Commissioner of Income Tax and another decided on June 2, 2022, to submit that merits 5 WTAX No. -1290 of 2022 of the controversy cannot be gone into at this stage. Once the competent authority had applied its mind while granting approval for reopening of the assessment, the merits of the controversy cannot be gone into. Special Leave Petition filed against the aforesaid order before Hon’ble the Supreme Court also stands dismissed vide order dated September 2, 2022. 9. Heard learned counsel for the parties and perused the paper book. SCHEME OF INCOME TAX ACT FOR REASSESSMENT 10. Before we proceed to consider the arguments raised by the parties, we deem it appropriate to examine the scheme of the Act for reassessment as the same has undergone a change with effect from April 1, 2021. Position prior to April 1, 2021 11. In terms of Section 147 of the Act, existing prior to its amendment with effect from April 1, 2021, an Assessing Officer could initiate proceedings for reassessment for reasons to believe that any income chargeable to tax has escaped assessment. Explanation 2 of Section 147 provides certain instances which for the purpose of section were admitted to be a case where income chargeable to tax has escaped assessment. 12. Section 148 of the Act as existing upto that date required that before making assessment, reassessment or recomputation under Section 147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish his return. Section 148(2) provides that the Assessing Officer, before issuing any notice under the section, record his reasons for doing so. 6 WTAX No. -1290 of 2022 13. As the law as stood at that time, upon filing the return the assessee could seek reasons for issuing such notice. After receipt of reasons, the assessee was entitled to question the initiation of reassessment proceedings by filing objections before the Assessing Officer. Before proceeding further, the Assessing Officer was required to dispose of the objections raised by the assessee, challenging his jurisdiction to initiate reassessment proceeding. Any such order passed could be challenged by invoking writ jurisdiction of the Court. Reference can be made to a judgment of Hon’ble the Supreme Court in GKN Driveshafts (India) Ltd. Vs. Income Tax Officer6 14. The law interpreting the aforesaid provision as existing at that time also provided that the belief has to be that of a prudent person having connection with the material. Fishing and roving enquiry was not possible nor a change of opinion. Sufficiency of reasons could not be a ground to challenge initiation of reassessment proceedings. 15. Section 151 of the Act provides for prior approval of the competent authority before issuance of notice under Section 148 of the Act. Position after April 1, 2021 16. Substantial changes have been made in the provisions providing for reassessment with effect from April 1, 2021. 17. Section 147 of the Act, which initially provided for reopening of assessment ‘for reasons to believe’ was amended. It now provides that if any income chargeable to tax has escaped assessment, the Assessing Officer may assess or reassess such income or recompute the loss. The exercise of power is subject to 6 259 ITR 19 (SC) 7 WTAX No. -1290 of 2022 Sections 148 to 153 of the Act. 18. Before passing an order under Section 147 of the Act, the Assessing Officer is required to serve the assessee a notice along with copy of the order passed under clause (d) of Section 148A of the Act, requiring him to file the return. First proviso of Section 148 provides that no notice under this Section shall be issued unless there is information with the Assessing Officer which suggests that income chargeable to tax has escaped assessment. The prerequisite is only availability of information, suggesting that income has escaped assessment. Such an exercise of power has to be with prior approval of the specified authority. 19. In Explanation 1 to the aforesaid Section, meaning of words ‘information with the Assessing Officer which suggests that income chargeable to tax has escaped assessment’, has been defined. It includes objection raised by the CAG to the effect that assessment for the relevant assessment year has not been made in accordance with the provisions of the Act. 20. The aforesaid provision has undergone a change vide Finance Act, 2022 with effect from April 1, 2022. Clause (ii) of Explanation 1, now contain words ‘any audit objection’ instead of the words ‘any final objection raised by the CAG’. The condition is information in the form of audit objection to the effect that assessment has not been framed in accordance with the provisions of the Act. The relevant clauses are reproduced hereunder : “Explanation 1-For the purposes of this section and section 148A, the information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment means,- (i) any information in the case of the assessee for the relevant assessment year in accordance with the risk 8 WTAX No. -1290 of 2022 management strategy formulated by the Board from time to time; (ii) any audit objection to the effect that the assessment in the case of the assessee for the relevant assessment year has not been made in accordance with the provisions of this Act; or (iii) any information received under an agreement referred to in Section 90 or Section 90A of the Act; or (iv) any information made available to the Assessing Officer under the scheme notified under Section 135A; or (v) any information which requires action in consequence of the order of a Tribunal or a Court.” (emphasis supplied) 21. Newly added Section 148A of the Act provides that the Assessing Officer before issuing notice under Section 148 of the Act shall conduct enquiry, if required, with prior approval of the specified authority with respect to the information which suggests that income chargeable to tax has escaped assessment. Clause (b) thereof provides that an opportunity of hearing is to be afforded to the assessee to show cause as to why notice under Section 148 of the Act be not issued on the basis of information which suggests that income chargeable to tax has escaped assessment. Reply of the assessee, if any, is to be considered and an order is required to be passed in terms of Section 148(d) of the Act. Second proviso to the aforesaid Section provides eventualities in which the scheme will not apply. 22. Newly added Section 148B of the Act which was added with effect from April 1, 2021 by Finance Act, 2021 provides that no order of assessment or reassessment or recomputation shall 9 WTAX No. -1290 of 2022 be passed by an Officer below the rank of Joint Commissioner, to which Clauses (i) to (iv) of Explanation 2 to Section 148 apply except with prior approval of Additional Commissioner or Additional Director or Joint Commissioner or Joint Director. DISCUSSIONS 23. In the case in hand, notices under Section 148 of the Act has been issued on the basis of an audit objection to the effect that assessment has not been made in accordance with the provisions of the Act. This constitutes information which is sufficient to initiate proceedings under Sections 147 and 148 of the Act. After the substantial amendments carried out in the Act, it now provides that the proceedings can be initiated in case where income chargeable to tax has escaped assessment. Proviso to Section 148 of the Act provides that before issuing such notice, the Assessing Officer should have information which suggests that the income chargeable to tax has escaped assessment. In terms of Clause (ii) of Explanation 1, meaning has been assigned to the term information suggesting that income chargeable to tax has escaped assessment to include even an audit objection. In the case in hand as well, notice under Section 148 of the Act has been issued on the basis of an audit objection giving complete details as to how the income chargeable to tax has escaped assessment. Merely because in some of the show cause notices issued to the petitioner during the course of assessment proceedings after search, a brief reference was made to some information, which was not finally dealt with, will not absolve or will not come to the rescue of the assessee to claim that the issue has already been considered. It is for this reason that the audit objection was raised. 24. For the sake of convenience, Sections 147, 148 and 148A of the Act are reproduced below : 10 WTAX No. -1290 of 2022 “147. If any income chargeable to tax, in the case of an assessee, has escaped assessment for any assessment year, the Assessing Officer may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance or any other allowance or deduction for such assessment year (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year). Explanation -For the purposes of assessment or reassessment or recomputation under this section, the Assessing Officer may assess or reassess the income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in the course of the proceedings under this section, irrespective of the fact that the provisions of section 148A have not been complied with.” X X X X “148. Before making the assessment, reassessment or recomputation under section 147, and subject to the provisions of section 148A, the Assessing Officer shall serve on the assessee a notice, along with a copy of the order passed, if required, under clause (d) of section 148A, requiring him to furnish within such period, as may be specified in such notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified 11 WTAX No. -1290 of 2022 in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139: Provided that no notice under this section shall be issued unless there is information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment in the case of the assessee for the relevant assessment year and the Assessing Officer has obtained prior approval of the specified authority to issue such notice: Provided further that no such approval shall be required where the Assessing Officer, with the prior approval of the specified authority, has passed an order under clause(d) of section 148A to the effect that it is a fit case to issue a notice under this section. Explanation 1-For the purposes of this section and section 148A, the information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment means,- (i) any information in the case of the assessee for the relevant assessment year in accordance with the risk management strategy formulated by the Board from time to time; (ii) any audit objection to the effect that the assessment in the case of the assessee for the relevant assessment year has not been made in accordance with the provisions of this Act; or 12 WTAX No. -1290 of 2022 (iii) any information received under an agreement referred to in Section 90 or Section 90A of the Act; or (iv) any information made available to the Assessing Officer under the scheme notified under Section 135A; or (v) any information which requires action in consequence of the order of a Tribunal or a Court. Explanation 2.-For the purposes of this section, where,- (i) a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A, on or after the 1st day of April, 2021, in the case of the assessee; or (ii) a survey is conducted under section 133A, other than under sub-section(2A) of that section, on or after the 1st day of April, 2021, in the case of the assessee; or (iii) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner, that any money, bullion, jewellery or other valuable article or thing, seized or requisitioned under section 132 or section 132A in case of any other person on or after the 1st day of April, 2021, belongs to the assessee; or (iv) the Assessing Officer is satisfied, with the prior approval of Principal Commissioner or Commissioner, that any books of account or 13 WTAX No. -1290 of 2022 documents, seized or requisitioned under section 132 or section 132A in case of any other person on or after the 1st day of April, 2021, pertains or pertain to, or any information contained therein, relate to, the assessee, the Assessing Officer shall be deemed to have information which suggests that the income chargeable to tax has escaped assessment in the case of the assessee where the search is initiated or books of account, other documents or any assets are requisitioned or survey is conducted in the case of the assessee or money, bullion, jewellery or other valuable article or thing or books of account or documents are seized or requisitioned in case of any other person. Explanation 3.-For the purposes of this section, specified authority means the specified authority referred to in section 151.” X X X X “148A. The Assessing Officer shall, before issuing any notice under section 148,- (a) conduct any enquiry, if required, with the prior approval of specified authority, with respect to the information which suggests that the income chargeable to tax has escaped assessment; (b) provide an opportunity of being heard to the assessee by serving upon him a notice to show cause within such time, as may be specified in the notice, being not less than seven days and but not 14 WTAX No. -1290 of 2022 exceeding thirty days from the date on which such notice is issued, or such time, as may be extended by him on the basis of an application in this behalf, as to why a notice under section 148 should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment in his case for the relevant assessment year and results of enquiry conducted, if any, as per clause (a); (c) consider the reply of assessee furnished, if any, in response to the show-cause notice referred to in clause (b); (d) decide, on the basis of material available on record including reply of the assessee, whether or not it is a fit case to issue a notice under section 148, by passing an order, with the prior approval of specified authority, within one month from the end of the month in which the reply referred to in clause (c) is received by him, or where no such reply is furnished, within one month from the end of the month in which time or extended time allowed to furnish a reply as per clause (b) expires: Provided that the provisions of this section shall not apply in a case where,- (a) a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A in the case of the assessee on or after the 1st day of April, 2021; or 15 WTAX No. -1290 of 2022 (b) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner that any money, bullion, jewellery or other valuable article or thing, seized in a search under section 132 or requisitioned under section 132A, in the case of any other person on or after the 1st day of April, 2021, belongs to the assessee; or (c) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner that any books of account or documents, seized in a search under section 132 or requisitioned under section 132A, in case of any other person on or after the 1st day of April, 2021, pertains or pertain to, or any information contained therein, relate to, the assessee. (d) the Assessing Officer has received any information under the scheme notified under section 135A pertaining to income chargeable to tax escaping assessment for any assessment year in the case of the assessee. Explanation.- For the purposes of this section, specified authority means the specified authority referred to in section 151.” (emphasis supplied) 25. In the present case, a perusal of the notice shows that it was issued on the basis of an audit objection. There were cash transactions to the tune of 156,45,19,154/-. During course of assessment, the source and \u0001 genuineness of the transaction was not asked for. These, having remained 16 WTAX No. -1290 of 2022 unexplained, were required to be treated as income of assessee under Section 68 of the Act. It may have tax effect to the tune of 64,34,53,872/-. Details of the cash transactions were also annexed with \u0001 the reasons. It was on the basis of various messages recovered from the mobile phone of the petitioner, which was seized during raid. In terms of aforesaid text messages, the amount was to be delivered to different persons on being identified by showing currency notes bearing particular numbers. The illegal activities of the petitioner were found to be in the nature of providing accommodation entries through stage managed sham sale and purchase of penny stocks. 26. Aforesaid notice was replied to by the petitioner vide his letter dated April 15, 2022 after seeking adjournments. The plea raised was that all the texts and the information which was available with the Department was examined in detail at the time of framing assessment under Section 153A of the Act, hence, there was no scope for issuing any notice under Section 148 of the Act. There was no fresh material available. Aforesaid reply was supplemented by another reply vide letter dated April 19, 2022. It was stated that after the search the phone of the petitioner was also seized and the messages were extracted therefrom. The chats and messages were thoroughly examined and on the basis of same, additions were made in the case of M/s Kanpur Organics Pvt. Ltd., wherein a sum of 1,51,00,000/- was surrendered. Also on the basis of the \u0001 said material, the assessments of other group assessees were framed. The contents of the information as such was not disputed by the petitioner. 27. The details of the persons to whom the cash has been delivered as per the information extracted from the text messages in the mobile of the petitioner, which forms part of the notice are extracted below: 17 WTAX No. -1290 of 2022 Date Message from whom received Consent Pally/specifying message Transaction Amount 23.05.2014 Sonu Kanpur 23 Aaye hai a/c mein 2300000 10.01.2015 Arvind Mittal UBI RKD Chq. No.033805 250000 12.01.2015 -do- Kamleshji 10mt (Rs.Ten Crores using Ten Rs.note No.63m356014 for hawala transfer) 100000000 12.01.2015 -do- PK Singh 5mt (Rs.5 crore Ten Rs, note used for transfer of cash 52L995010) 50000000 14.01.2015 -do- Kapoorji 90 ka RTGS 9000000 16.01.2015 -do- Manish 45kg (Rs.45 lacs Delhi Note of Rs. 10 used no.09310088014 4500000 22.01.2015 -do- Sunil K. Goel (Scrip code:538921 Scrip Id L RAFL) 1286000 07.02.2015 -do- Vasundhara Capital & Securities Ltd. 130000 14.02.2015 -do- Rs.l note no. 41L679749 used for 75 KG (Rs. 75 lacs 7500000 04.03.2015 Sanjay HDFCR5201503040343 0793 (Tatwesh Se Na Kahna ham ne diya hai. That is saying by Sanjay a person of Subodh Agarwal, Tatwesh is brother of Sri Sahswat Agarwal director of Rich Capital/NikkiGloba1 being largest entry provider) 865128 19.08.2015 Deepak Bhartiya Directing to Rajkumarji arranging for a note no. for hawala transfer of 10 kg say for Rs.10 lacs 1000000 16.06.2015 -do- Pl. give note for 5kgs i.e. transfer of hawala for Rs.5 lacs 500000 10.08.2015 -do- Pl. give note for 15 kgs i.e transfer of hawala for Rs. 15 lacs 1500000 13.08.2015 -do- Pl. give note for 10 kg i.e transfer of hawala for Rs. 10 lacs 1000000 28 08.2015 Arvind Mittal Arun Kumar 1300000 18 WTAX No. -1290 of 2022 -do- Vandana Saini 500000 -do- Arun Kumar 500000 -do- Arun Kumar 1300000 -do- Vandana Saini 500000 03.07.2015 -do- 27 kg i.e. Rs.2700000 Rs.10 note no.29B524554 2.700000 30.6.2015 -do- Sneha Kurele 145000 28.06.2015 -do- Jeetu Bhai Ko 25 Subhasji ke a/cmay bol do 2500000 19.06.2015 -do- 10 Rs. Note45T i.e. Rs. 45 crore 450000000 20.05.2015 -do- Kolkata Rajkumarji Rs.2 note no.04D609437 for 40 kg i.e. transfer of hawala fund of Rs. 40 lacs 4000000 20.05.2015 -do- Prasanta Mondal, Kolkata Rs. 10 note no.77m690699 for 40 kg i.e. transfer of hawala fund of Rs. 40 lacs 4000000 25.05.2015 -do- Yogesh Delhi, Noida 10 Ni Note no.24n032491 for 75 Kg i.e. hawala money involved Rs. 75 lacs 7500000 -do- JK Delhi, Noida Rs.2 note no.62h817157 for 120kg i.e. hawala money Rs.l cr. 20 lacs. 12000000 01.06.2015 -do- Premier Alloys Ltd. 30Dec.2014 Rs.17 lacs 2Jan.2015 Rs.10 lacs 7Jan.2015 Rs.15 lacs 4200000 11.05.2015 -do- Kanhaiya Lal Agarwal 5500000 -do- Sapna Kapoor 4000000 -do- Sumit Kapoor 5000000 07.05.2015 -do- Neil refers to Neil Industries owned by Arvind Mittal who corresponds the messages to Sri Subodh Agarwal Neil Se Abhishek ko 80 Ka Payment diya hai. 8000000 07.05.2015 -do- Cash 190247 23.04.2015 -do- Neil i.e. Neil Industries owned by Arvind Mittal 5000 Coding stand to Rs. 50 Crores 500000000 19 WTAX No. -1290 of 2022 16.04.2015 -do- Sunita Maheshwari & Anand Maheshwari Total fund involved 27931994 -do- Kundan Dealer Pvt. Ltd, 2500000 -do- Prakash Ko Kanpur me 200 dena hai i.e. decoded Rupees 20000000 -do- Lala se Delhi Ka 150 Ka number le lena i.e. some note no. to be used for hawala fund 15000000 -do- 'Give the token for Rs.250 200 OK in Lucknow 250 Paid' total involvement Rs. 2.50 crore 25000000 31.03.2015 -do- Using of Rs.10 note no.31c584165 04.04.2015 -do- Qnt. Of Dev Shankar Pandey Sulabh Shares:37500 Shares @91 27.03.2015 -do- Send 10500 from Abhishek Agarwal 25.03.2015 -do- Brahmavarta Infraheights Pvt Ltd. Transfer hawala fund 45 KG i.e. Rs.45 lacs 4500000 25.03.2015 Brahmavarta Infraheights Pvt Ltd. RTGS for 20 KG i.e. Rs.20 Lacs Transfer Hawala fund of Rs.20 lacs 2000000 26.03.2015 -do- Gyandeep Khemka & Co. (Vikash Agarwal, Vikash Agarwal, HUF & Renuka Agarwal) 4793250 27.03.2015 -do- Abhishek Agarwal Send 10500 i.e. Rs.10,50,000/- decoding 1050000 28.03.2015 -do- Hariom HDFCR520150328613( (4330 FOR 2294784.84) 4330 STAND DECODED AS 43.30 LACS 4330000 26.03.2015 -do- Gyandeep Khemka & Co, A/c No.00540340004413 4793250 25.03.2015 -do- RTGS managed Brahmavarta 45 Kg. i.e Hawala Money involved 4500000 20 WTAX No. -1290 of 2022 Infraheights P Ltd. A/c No.32886535860 Rs.45 lacs -do- RTGS managed Brahmavarta Infraheights P Ltd. A/c No.33739193894 45 Kg, i.e Hawala Money involved Rs.45 lacs 4500000 -do- RTGS managed Brahmavarta Infraheights P Ltd. Aic No.33739193894 20 Kg. i.e Hawala Money involved Rs.20 lacs 2000000 21/03/2015 -do- RTGS managed for 55Lacs and 4468702.22 5500000 4468702 -do- Prashant Mondal Rs. 1 Note no.24E866968 Kg.25 i.e. Hawala Money Rs.25Lacs 2500000 22/03/2015 -do. Suraj 2 Rs. Note no.67A333658 for 50K . i.e. Rs. 50Lacs 5000000 21/03/2015 -do- Escort Wincom Pvt. Ltd. 45Kg. i.e. 45Lacs 4500000 20/03/2015 -do- Sunil Kapoor 45Kg. from salvation to Sunil Kapoor 4500000 19/03/2015 -do- 200 Lala and 100 Five Roses 19/03/2015 -do- Prashant Mondal Rs.2 note no.63S060829 for 50 5000000 18/03/2015 -do- Prashant Mondal '300000' Share Modi ka Alok de raha hai RTGS managed for 50 in Amar Jyoti by Prashant Mondal 5000000 20/03/2015 -do- Gagandeep Construction Co. Pvt. Ltd. Rs.155 i.e. 1550000 1550000 18/03/2015 -do- Suraj Rs.10 note no.18S 066136for 50Kg. i.e. Rs. 50 Lacs 5000000 -do- Suraj Rss 10 note no.53p974097 for 50Kg. i.e. Rs. 50Lacs 5000000 17/03/2015 -do- Prashant Mondal Rs.50 note no.8AH386946 for 50kg. i.e. 50 Lacs 5000000 12/03/2015 -do- Jai Sharma RTGs managed 40 ka 4000000 -do- Kothari 50000 share ka matter -do- Gabajee For 10 kg note of Rs.10 no. 60k487337 6000000 11/03/2015 -do- Deoraji For 15 Note of Rs.10 no.23a137127 1500000 21 WTAX No. -1290 of 2022 03/03/2015 -do- Deendayalji Rs.15 Note of Rs.5 no. 40c799140 1500000 24/02/2015 -do- Ocean Advisory P Ltd. By Pawan Kumar Kurele 1600000 -do- Prasanta Mondal Rs.l note no.78r493629 for 25 kg 2500000 -do- Prasanta Mondal Rs.50 ka note no.5d1556919 for 25 kg 2500000 14/02/2015 -do- Escort vincom P Ltd, to shubhang export 75 kg( 1 Lac mein final kiya i.e. his commission) Note of Rs.l used no.41L679749 for this 75 kg to Prasanta mondal 7500000 07/02/2015 -do- Escort vincom P. Ltd. To Brahmavarta Infraheights 25kg 2500000 Extracts/analysis of messages derived from Mobile I phone of Subodh Agarwal documentised as Document-2 Date Message from whom received Consent Party/specifying message Transaction Amount 21/07/2015 Rajiv Agnihotri Rs.5 Note no. 18K941426 For Pintu 5.50+91, and Rs.5 note no.82D363143 Chintu for 7 13.41 Lacs 1341000 23/07/2015 Babua K K 60 O.K. 60 Lacs 6000000 24/07/2015 Niel Industries RTGS made Rs. 10Lacs from Sunil K Gupta 10 Las 1000000 23/07/2015 Intuition Infranstructure p. Ltd. Rss 5Lacs debited 5Lacs 500000 20/7/2015 N. Kurele 9999@ Yahoo.com 7.75+1 .25=9 O.K. ho gaya 1 Balance 10 Lacs 1000000 11/08/2015 919956111111 60 Lacs withdrawn for Niel Ind. 60 Lacs 6000000 12/08/2015 9435029042 Rambabu 3 Lacs 300000 13/08/2015 Kaka 1 3 Lacs cash 3 Lacs 300000 22 WTAX No. -1290 of 2022 24/08/2015 Sanjay ji Hyd For 7 Box 7 Lacs 700000 25/08/2015 Lala Recd. 350Cheq & Old account Che 91.3 4 Cr 41 Lacs 30Th 44130000 24/07/2015 Subhash Ghosh A/c no.37641089 Credited Rs. 40 Lacs through RTGS Rodic; and this a/c debited bv 60 Lacs 30/07/2015 to Sanjeevani Fer. 60 Lacs 6000000 08/08/2015 VM FROMSC A/c no.623xxxx8673 credited Rs. 50 Lacs on 20/08/2015 and debited Rs. 20 Lacs on 26/08/2015 and Rs. 10 Lacs debited on 28/08/2015 50 Lacs 5000000 26/08/2015 S Baj Suresh Kumar Rs. 102240 ManishGoel HUF 110160 Anuj K Singh 195300 Richa Singh 195600 603300 603300 20/08/2015 Arvind Rs 5 Note no, J5B779015 5 Lacs 500000 28/0/2015 -do- Arun Kumar, New Delhi Vandana Saini Arun Kumar HUF Sanjay Kumar (Account managed no, 913010053203458 Axis Bank, Delhi) 80 Lacs 30 Laos 30 Lacs 25 Lacs 16500000 20/07/2015 R.K. (Raj Kumar Ji) Chintu Ji Rs. 6Lacs Rs.5 Note no.82D363143 6Lacs 600000 21/07/2015 R. K. (Raj Kumar Ji) 5.5 Lacs Rs. 5 Note no. 18K941426 5.5 Lacs 550000 27/07/2015 -do- Deepankar Maurya deposit of Rs. 25000 in A/c no. SBI 32970138120 25K 25000 28/08/2015 -do- Deposit of rs.10000 in SBI a/c no. 11288630578 10K 10000 23 WTAX No. -1290 of 2022 Extracts/analysis of messages derived from Mobile I phone of Subodh Agarwal documentised as Document-2: Date Message from whom received Consent Party/specifying message Transaction Amount 25/05/2015 N Kurele Rs.10 Ni note 24N032491 Ph.no. 01123992886 Yogesh for 75 Kg. Delhi Noida Hawala Money 75 Lacs 7500000/- 07/04/2015 9335126620 Raksha Garg Purchase JP 40000@86.50 amount 3460000 34Lacs 60Thousand 3460000/- 25/08/2015 Rodic Coffee Pvt.Ltd. 10109.00Kg.@ 202.30Kg=2045050 (Arbica Parchment) 20Lacs 45thousand & fifty 2045050/- 10/02/2015 AN Trading of Shares Sneha Kurele 20000, Preity Kurele 20000, Mitee Saigal 10000 - - 02/03/2015 Mns Payment made to Ramada Jamshedpur Cash 50Lacs RTGS 2463880 Cash 45353 75.09 Lacs 7509233/- 12/06/2015 Mns Premier Alloys 42 Kg.( on 30/12/14 Rs.17Lacs, 02/01/2015 Rs. 10Lacs, 07/01/2015 Rs. 15Lacs) 42Lacs 4200000/- 16/06/2015 Mns Success Vyapar Ltd. 98 Lacs, Niel Ind. 21.94 Lacs 1Cr. 19Lacs 94Thousand 11994000/- 19/03/2015 Sanjiv Srivastava No of share to purchase will be decided by so that the profit on sale next year will be as below: Profit to be allocated @ 9.00 to twelve persons of Surendra Gupta and others 108 Lacs 1Cr. 8 Lacs 10800000/- 22/06/2015 A Kurele Physical Shares of 320000 of Modi Udyog Ltd. account used Ocian Advisery Pvt. Ltd. a/c 600350116274 HDFC Bank and New Wave Commo Deal Pvt Ltd. 600350116508 - - 08/04/2015 R Kant Rs. 10 ka Note no. 87A075453 for 2.5 Peti 2.5Lacs 250000/- 28/07/2015 Karva Vivek 10 for 10 days and 168000 11 Lacs 68Thousand 1168000 23/03/2015 Harish Gupta, Orai Usha Devi 3 Lacs, Ram Asrey Gupta 3 Lacs, Rajendra Kumar Gupta 1.5 Lacs 7Lacs 50THousond 750000 24 WTAX No. -1290 of 2022 26&27/05/2015 -do- Arrangement for transfer of Rs. 50Lacs 50Lacs 5000000 12/06/2015 -do- Manjeet Singh Rs.42Lacs for Success Vyapar Ltd. 42Lacs 4200000 8/06/2015 -do- Kal 5.00 kaRTGS Success me kar diya gaya tha, kya cash aaj mil sakta hai(Ha 2 baje tak)(RTGS made from Ashish Agarwal SBI,Orai Cheq. no.211836) 5Lacs 500000 23/06/2015 -do- Kal 25 entry honi hai;5 Lacs reverse entry 25Lacs 2500000 08/04/2015 Mob.[phone] Flat no.505 Anand Luxmi Apptt. Chain factory Shastri Ngr., Kanpur; 8Kg 8Lacs 800000 12/05/2015 Mob, 7379312345 RTGS for 40 40Lacs 400000 24/05/2015 -do- RTGS Req. 85Lacs (send 50 in evening Shri Hanuman Infra Promoters Pvt. Ltd. 85Lacs 8500000 23/04/2015 Mob.[phone]+9+5=22 sent from Aruna Nemani 22Lacs 2200000 18/02/2015 Mob,9198932222 Rs.l note no.78R493629 for 25 Kg. Prashant Mondal and Rs.50note no. 5DL556919 for 25Kg 50Lacs 5000000 28. After considering the objections filed by the petitioner in terms of Section 148A(c) of the Act, order was passed under Section 148A(d) and a notice under Section 148 of the Act was issued calling upon the petitioner to file his return on the prescribed form for the assessment year 2015-16. It is the aforesaid show cause notice which is under challenge in the present petition. The order under Section 148(d) of the Act as annexed with the aforesaid notice specifically refers to the audit objection as the information on the basis of which proceedings were initiated. The information is specific. From the information it was evident that the petitioner was indulging in Hawala activities/transactions. It was specifically mentioned that the material as referred to in the audit objection was not considered at the time of initial assessment. The 25 WTAX No. -1290 of 2022 petitioner had not explained the entries as put to him in the show cause notice issued under Section 148(b) of the Act. His reply was based only on technicalities. The unverified and unexplained transactions are to the tune of 156,45,19,154/-. \u0001 Section 153A of the Act 29. As far as assessment of the petitioner framed under section 153A of the Act is concerned, in the appeal filed against the order, Commissioner of Income Tax (Appeals) has upheld the order of assessment. Appeal filed before Income Tax Appellate Tribunal, Lucknow Bench ‘B’, Lucknow (hereinafter referred to as ‘the Tribunal’) was allowed vide order dated October 7, 2021 on the ground that there was violation of provisions of Section 153D of the Act with reference to prior approval of Additional Commissioner of Income Tax before passing the order of assessment. The opinion of the Tribunal was that the process of granting mechanical approval under Section 153D of the Act vitiated the entire proceedings. The Department filed Income Tax Appeal No. 86 of 2022 against the aforesaid order before this Court, which was dismissed on December 12, 2022, upholding the order passed by the Tribunal on the ground that approval of draft assessment order by the Competent Authority was without application of mind. 30. Second proviso to Section 153A of the Act will not come to the rescue of the petitioner for the reason that in terms thereof assessment or re-assessment pending for the assessment years in question on the date of initiation of search under Section 132 or making requisition under Section 132A of the Act shall abate. Admittedly, in the case in hand present re-assessment proceedings were not pending on the date when search was carried out at the premises of the petitioner. Notice in the case in hand for initiating re-assessment proceeding was issued on April 24, 26 WTAX No. -1290 of 2022 2022 whereas search was carried out on August 31, 2015. 31. As to whether an audit objection can constitute information on the basis of which re-assessment proceeding can be initiated, reference can be made to Explanation 1, Clause (ii) to second proviso of Section 148 of the Act. The aforesaid provision clearly provides that any audit objection to the effect that assessment in case of assessee for the relevant assessment year has not been made in accordance with the provisions of the Act is included in the term ‘information regarding escaped assessment’. In the case in hand, it is not a matter of dispute that there is an audit objection raised that the assessment of assessee has not been framed properly in accordance with the provisions of the Act. It is a case where petitioner was indulging in providing accommodation entries. The text messages recovered from his mobile phone clearly corroborated the modus operandi adopted by the petitioner. The amount involved is to the tune of 156,45,19,154/-. \u0001 32. Merely because at one stage the Assessing Officer had answered to the queries raised by the Auditor regarding the assessment being in accordance with the provisions of the Act and there being no illegality therein, will not mean that the information in the form of audit objection could not be relied upon to opine that the income chargeable to tax had escaped assessment. Existence or non-existence of information can be subject matter of litigation but not the sufficiency thereof. 33. As far as the argument raised by learned counsel for the petitioner that after assessment had been framed under Section 153A of the Act there was application of mind and examination of record at different levels in the Department as the assessment order is passed with approval of the higher authorities, there was no scope for initiation of fresh proceedings for re-assessment under Section 148 of the Act, in our opinion, even this argument is also to be noticed and rejected. In support of the argument no provision of law as such has been cited except 27 WTAX No. -1290 of 2022 second proviso of Section 153A of the Act, in terms of which only pending proceeding abate. Only reference was made to the judgment of Gujarat High Court passed in Cargo Clearing Agency’s case (supra). A plain reading of the aforesaid judgment shows that it is based on the fact that at the time of framing block assessment after search there is detailed examination of the record even at the higher level, hence, no scope is left for raising the issue again by initiating proceeding under Section 148 of the Act. However, in the case in hand, it is undisputed case on record that the order of assessment passed in case of the petitioner under Section 153A of the Act was set aside only on the ground that there was no application of mind by the higher authorities for granting approval under Section 153D of the Act. And the issue raised by the Audit has not been examined at the time of assessment after search. It may further be added that in the assessment year for the period under consideration in the aforesaid judgment the audit objection was not an information which has been added in Clause(ii) to second proviso of Explanation 1 of Section 148 of the Act with effect from April 1, 2022. 34. Similar issue came up for consideration before Gujarat High Court in Krishna Developers and Company vs. Deputy Commissioner of Income-tax7, wherein the Court considered a case where original assessment of the assessee was set aside on technical ground that notice under Section 143(2) of the Act was not served. The argument raised by assessee was that original assessment having failed on the ground of non- issuance of mandatory notice for scrutiny, initiation of proceedings under Section 147/148 was illegal as object was only to cure the defect. The said contention was rejected and the petition was dismissed by the Division Bench of the Gujarat High Court observing that merely on the ground that the reasons recorded by the Assessing Officer were same on the basis of which Assessing Officer has initially decided to make addition but failed 7 (2017) 94 Taxmann.com 166 (Guj.) 28 WTAX No. -1290 of 2022 as the order was set aside on technical ground would not preclude him from carrying out the exercise of reopening of assessment. Relevant paragraphs are reproduced as under: “20. Nothing contained in the language of section 147 would permit us to hold that even if all the parameters to enable the Assessing Officer to assess or reassess the income by reopening the assessment are present, same may not be permitted in cases where the original assessment framed by the Assessing Officer has failed on any technical ground, such as in the present case i.e. want of service of notice under section 143(2) of the Act. Once the original assessment is declared as invalid as having been completed without the service of notice on the assessee within the statutory period, there would be thereafter no assessment in the eye of law. The situation therefore, be akin to where return of the assessee has been accepted without a scrutiny. Reopening of the assessment, if the Assessing Officer has the reason to believe that income chargeable to tax has escaped assessment, would be entirely permissible under section 147 of the Act. Merely on the ground that the reasons recorded by the Assessing Officer proceeded on the same basis on which the Assessing Officer initially desired to make additions but which failed on account of setting aside the order of assessment, would not preclude the Assessing Officer from carrying out the exercise of reopening of the assessment. In the present case, facts are peculiar. It is not as if the Assessing Officer after noticing certain discrepancies in the return of the assessee, slept over his right to undertake the scrutiny assessment. The scrutiny assessment was initiated by issuance of notice under section 143(2) of the Act on 29 WTAX No. -1290 of 2022 23.9.2013. It was also dispatched for service to the assessee on 24.9.2013 by Speed Post on the last known address. The Commissioner (Appeals) however, held that there was no proof of service of notice and since section 143(2) requires service of notice, the assessment was framed without complying with the mandatory requirements. 21. We may refer to some of the decisions on the point. In case of A G Group Corporation (supra), the Court noticed that at one point the Revenue had reopened the assessment of the assessee. However, such assessment failed on the ground that the reasons were not recorded by the Assessing Officer for issuing such a notice. On the same ground, the Revenue issued fresh notice of reopening which was challenged before the High Court. The High Court held that when the earlier order stood annulled on the ground of lack of fulfillment of the basic requirement under section 147 of the Act, there was no bar against reopening the assessment once again on the same grounds after following due procedure in accordance with law.” (emphasis supplied) 35. The aforesaid order of the Gujarat High Court attained finality after dismissal of the Special Leave Petition of the assessee by Hon’ble Supreme Court vide judgment reported in (2018) 91 taxmann.com 306 (SC). 36. Similar issue came up for consideration before Delhi High Court in CIT Vs. Vishal Gupta8. In that case also, the order of assessment was set aside by Tribunal on the ground that statutory notice under Section 143(2) of the Act was not served within stipulated period. Thereafter, notice for reopening the assessment was issued. The Tribunal 8 (2012) 22 taxmann.com 82/210 Taxman 65 (Mag) (Delhi) 30 WTAX No. -1290 of 2022 again set aside the said order. However, Delhi High Court, reversing the order of the Tribunal, observed that if the reason to believe that income for any assessment year has escaped assessment are available, the proceedings under Section 147/148 of the Act are independent. There may be valid ground for setting aside the original assessment order, but the same cannot be the basis to quash the reassessment proceedings. Relevant paragraphs are reproduced as under: “11. The facts elucidated above clearly show that the tribunal has quashed/set aside the original proceedings on the technical ground that statutory notice under Section 143(2) was not served on the respondent-assessee within the stipulated period of 12 months from the month in which return was filed. 12. The Assessing Officer thereafter had recorded fresh reasons and issued notice under Section 147/148 of the Act. The reasons to believe now recorded have to stand on their own legs and are separate from the reasons to believe, which were recorded earlier before initiation of the re-assessment proceedings, which abated. The said reasons to believe and issue of notice under Section 147/148 of the Act cannot be faulted and rejected on the ground that in the earlier/original assessment or re-assessment proceedings, notice under Section 143(2) was not served on the assessee within the statutory time/period. This was a valid ground to quash the first/original assessment/re-assessment order, but it cannot be a ground to quash the re-assessment proceedings, which have been initiated afresh after recording reasons to believe.” 37. It is the settled position of law that prima facie availability of material is sufficient for reopening of the reassessment proceedings and 31 WTAX No. -1290 of 2022 the sufficiency and correctness of the material is not to be considered at that stage. In the case of Raymond Woollen Mills Ltd. Vs. ITO and others9 even though it was a case where reasons were required to be recorded in writing, Hon’ble the Supreme Court opined that only prima facie material has to be seen on the basis of which the Department could reopen the case. Sufficiency or correctness of the material is not to be considered. The issues can be examined in detail during the assessment proceedings. Relevant paragraph thereof is extracted below: “3. In this case, we do not have to give a final decision as to whether there is suppression of material facts by the assessee or not. We have only to see whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Income-tax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of the case. The questions of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take all the points before the assessing authority. The appeals are dismissed. There will be, no order as to costs.” (emphasis added) 38. In Assistant Commissioner of Income Tax Vs. Rajesh Jhaveri Stock Brokers P. Ltd.10, Supreme Court examined the scope of 9 (1999) 236 ITR 34 (SC) 10 (2007) 291 ITR 500 (SC) 32 WTAX No. -1290 of 2022 Section 147 of the Act. It was observed that at the stage of initiation of proceedings, final outcome thereof is not relevant. In terms of the provisions of law existing at that time, at the initiation stage what is required is ‘reason to believe’, which, with the legal position as existing today, provides initiations of proceedings only on the information received. It is the subjective satisfaction of the Officer. Relevant paragraph 16 thereof is extracted below: “16. Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. The word “reason” in the phrase “reason to believe” would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Supreme Court in Central Provinces Manganese Ore Co. Ltd. v. ITO (1991) 191 ITR 662, for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential. At that stage, the final outcome of the proceeding is not relevant. In other words, at the initiation stage, what is required is “reason to believe”, but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could 33 WTAX No. -1290 of 2022 have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the Assessing Officer is within the realm of subjective satisfaction (see ITO v. Selected Dalurband Coal Co. Pvt. Ltd. (1996) 217 ITR 597 (SC); Raymond Woollen Mills Ltd. v. ITO (1999) (236) ITR 34 (SC).” 39. The present case cannot be said to be a case of change of opinion for the reason that there is no finding recorded in the earlier assessment order passed under Section 153A of the Act, which was set aside on technical ground of non approval of the competent authority in terms of Section 153D of the Act. 40. For the reasons mentioned above, we do not find any merit in the present petition. The same is, accordingly, dismissed. (J.J. Munir) (Rajesh Bindal) Judge Chief Justice Allahabad January 25, 2023 Manish Himwan Whether the order is speaking : Yes/No Whether the order is reportable: Yes Digitally signed by :- MANISH HIMWAN High Court of Judicature at Allahabad "