Bombay H.C : Where Assessing Officer being satisfied with explanation offered by assessee with regard to its claim that purchase/sale of shares offered to tax under head ‘capital gain’ was a result of investment activity passed assessment order under section 143(3) upon assessee and subsequently he reopened said assessment on plea that assessee had so manipulated its account that normal business profit in share trading was claimed as short-term capital gain so as to attract lower rate of tax, since very issue of taxability of sale of shares was considered by Assessing Officer during original assessment proceedings, entire proceeding for reopening assessment was based on change of opinion

High Court Of Bombay

Aroni Commercials Ltd. Vs. DCIT -2(1)

Assessment Year : 2008-09

Section : 145, 147

Mohit S. Shah, Cj. And M.S. Sanklecha, J.

Writ Petition No. 137 Of 2014

February  11, 2014

JUDGMENT

M.S. Sanklecha, J. – Rule, returnable forthwith. By consent of the parties the petition is taken up for final disposal.

2. By this petition under Article 226 of the Constitution of India, the petitioner challenges the following:—

(a) A notice dated 28 March 2013 under Section 148 of the Income Tax Act, 1961 (“the Act”) seeking to reopen assessment for the Assessment Year (“A.Y”.) 2008-09;

(b) The order dated 20 November 2013 passed by respondent No.1-Deputy Commissioner of Income Tax (“Assessing officer”) rejecting the petitioner’s objection to reopening of assessment for A. Y. 2008-09;

(c) The assessment order dated 19 December 2013 passed by the Assessing Officer under Section 143(3) read with Section 147 of the Act for A. Y. 2008-09.

3. At the very outset, Mr. Chhotaray, learned Counsel for the respondent-revenue raises a preliminary objection to the petition viz. that as an Assessment Order dated 19 December 2013 has already been passed, the issue of challenge to re-opening of assessment could be challenged by filing an appeal under the Act. Therefore, on this short ground alone, the petition be dismissed.

4. As against the above, Mr. Percy Pardiwala, learned Senior Counsel for the petitioner submits that the sequence of events in this case warrants this petition being entertained. It was by order dated 20 November 2013 that the Assessing Officer rejected the petitioner’ objection to re-opening of assessment for A. Y. 2008-09 by notice dated 28 March 20103. This Court in Asian Paints Ltd. v. Dy. CIT [2008] 296 ITR 90 has clearly laid down that when an assessment is sought to be reopened under Section 148 of the Act and the objections of the assessee have been over ruled by the Assessing Officer, then in such a case the Assessing Officer will not proceed further in the matter for a period of four weeks from the date of receipt of the order rejecting the objections of the assessee. In view of the above, it is submitted that the proceedings for reassessment itself could not be taken up for a period of four weeks from 22 November 2013 when the impugned order dated 20 November 2013 was served. Besides the Assessing Officer was informed at the hearing held on 10 December 2013 that the petitioners are in the process of challenging the reassessment proceeding for A.Y. 2008-09 in this Court. Moreover, on 18 December 2013 the Commissioner of Income Tax had been informed that the challenge to the order dated 20 November 2013 is posted for admission on 23 December 2013 in this Court. Inspite of the above, the Assessing officer has passed the assessment order dated 19 December 2013.

5. Mr. Chhotaray, the learned Counsel for the revenue on being confronted with the decision of this Court in Asian Paints Ltd.’s case (supra) submits that the aforesaid decision was not brought to the notice of the Assessing Officer. Therefore, not being aware of the decision of Asian Paints Ltd.’s case (supra) the Assessing Officer proceeded further in taking up the reassessment even though the period of four weeks from the date of the order dated 20 November 2013 over ruling the petitioner’s objection had not expired. At this stage, we asked Mr. Chhotaray whether the Assessing Officer would withdraw his assessment order dated 19 December 2013 in view of the decision of Asian Paints Ltd.’s case (supra) being brought to his notice. However, Mr. Chhotaray expressed inability to withdraw the assessment order dated 19 December 2013.

6. It is axiomatic that the law declared by this Court is binding on all authorities functioning within the jurisdiction of this Court. It is not open to the Assessing Officer to feign ignorance of the law declared by this Court and pass orders in defiance of the law laid down by this Court. We do not accept this submission made on behalf of the revenue that the Assessing Officer was not aware of the decision of this Court in Asian Paints (supra). On the contrary, it appears that the order dated 19 December 2013 was passed only to make the entire proceeding pending before this Court redundant and to present the Court with a fait accompli. This is particularly so as the petitioner had on 18 December 2013 informed the Commissioner of Income Tax that a writ petition has been filed challenging the order dated 20 November 2013 in respect of A. Y. 2008-09 and is posted for admission on 23 December 2013. It is averred in the petition that the Assessing Officer was informed at the hearing held on 10 December 2013, that it is preparing a petition to challenge the re-opening for A. Y. 2008-09 on identical grounds as done in earlier Assessment Year namely A. Y. 2007-08 which is pending in this Court and ad interim relief has also been granted, restraining the revenue from proceeding with the assessment for A. Y. 2007-08. The passing of an order on 19 December 2013 by the Assessing Officer in undue haste and thereafter contending that in view of alternative remedy, the writ petition should not be entertained, does not appear bona fide. This undue haste in passing the impugned order dated 19 December 2013 is an attempt to overreach the Court and to thwart the petitioner’s challenge to the impugned order dated 20 November 2013 pending before this Court.

7. In the above circumstances, we set aside the order dated 19 December 2013 passed by the Assessing Officer under Section 143(3) read with Section 147 of the Act for A. Y. 2008-09.

8. We shall now deal with the petitioner’s challenge to re-opening of assessment for A. Y. 2008-09 by impugned notice dated 28 March 2013 and impugned order dated 20 November 2013 rejecting the petitioner’s objection to its re-opening. Facts relevant to the above challenge are as under:—

(a) On 30 September 2008, the petitioner filed its return of income for A. Y. 2008-09. In its computation of income the petitioner has disclosed income from business and profession at Rs.28.71 lacs besides disclosing short term capital gains at Rs.3.68 crores and long term capital gain at Rs.3.71 crores.

(b) Thereafter, on 17 August 2009, a notice under Section 143(2) of the Act was issued to the petitioner calling upon the petitioner to attend the office of the Assessing Officer and produce the copies of the balance sheet, Profit and Loss Account, Computation of income and Audit report. On 27 August 2009, the petitioner filed particulars asked for and attended the hearing with the Assessing Officer on 28 August 2009.

(c) During the course of the assessment proceedings, certain details were sought for from the petitioner particularly a note on the nature of its activities. By its letter dated 9 July 2010 the petitioner pointed out that it was engaged in the business of financing, trading and investment in shares and securities.

(d) In response to a query made by the Assessing Officer during the hearing in course of assessment proceedings, the petitioner by communication dated 8 September 2010 explained in detail as to why its profit on sale of investments should be taxed as capital gain and not as profits and gains of business. In support reliance was placed upon the CBDT Circular No.4/2007 dated 15 June 2007 wherein parameters have been laid down for the purpose of making a distinction between shares held as investment and shares held as stock in trade. Further by communication dated 13 September 2010, the petitioner furnished sample contract notes, Demat Accounts and shareholding pattern of the companies to whom loans were advanced.

(e) The Assessing Officer was satisfied with the explanation offered by the petitioner with regard to its claim that purchase/sale of shares offered to tax under the head capital gain was a result of investment activity resulting in assessment order dated 12 October 2010 for A. Y. 2008-09. By the above assessment order the income was determined at Rs.4.15 crores under the normal provisions of the Act and at Rs.7.82 crores under Section 115JB of the Act. In fact, the assessment order also disallowed certain expenses under Section 14A of the Act incurred in respect of the exempted income viz. long term capital gains as well as dividend income.

(f) On 28 March 2013 the Assessing officer issued a notice under Section 148 of the Act to the petitioner seeking to reopen the assessment for A.Y. 2008-09 for the purposes of reassessment. On receipt of the notice, the petitioner sought the reasons for the re-opening of the assessment for A.Y. 2008-09. In response the Assessing Officer communicated the following reasons for reopening the assessment:—

“It is observed that the assessee is only engaged in the business of share trading and regularly doing purchase and sale of shares. The assessee has manipulated the affairs in such a way that where scrip has been sold within twelve months, it is claimed as short term capital gains and taxed at a lower rate by applying section 111A.As assessee is engaged in share trading activity only, all income/receipts should be treated as business income including short terms capital gain. Reliance is also placed on the Board’s Circular No.4 dated 15 June 2007.

In view of the above, I have reason to believe that income chargeable to tax has escaped assessment for A.Y. 2008-09 by reason of the failure on the part of the assessee to disclose fully and truly the income under the correct head and all material facts necessary for the assessment of income, resulting in the income being assessed at low rate/claimed exempt. Accordingly, the assessment for A.Y. 2008-09 is re-opened by issue of notice u./s. 148 of the Income Tax Act, 1961.”

(g) On 19 November 2013, the petitioner filed its objection to the reasons for reopening of the assessment for A.Y. 2008-09. In particular, it was stated that the notice for re-opening was received by the petitioner only on 17 September 2013.Therefore, the notice was beyond 4 years from the end of the relevant assessment year. It was also pointed out that the very issue viz. of assessing gains arising from sale/ purchase of shares was assessable as capital gain or business profit had been examined by the Assessing Officer during the course of assessment. This was evident from the petitioner’s letter dated 8 September 2010 to the Assessing Officer during the assessment proceeding leading to the assessment order dated 12 October 2010. In view of the above, it was submitted that the re-opening is only on the basis of change of opinion as there is no fresh tangible material which would warrant reopening of concluded assessment even within a period of 4 years from the end of the relevant assessment year.

(h) On 20 November 2013, the Assessing officer passed an order (received by petitioner on 22 November 2013) titled “order removing objections” holding that reopening of the assessments by notice dated 28 March 2013 was valid. The order dated 20 November 2013 holds that ‘re-opening is not due to any change of opinion but on clear observation that the assessee did not carry out any business activity other than Share Trading’. Further no details regarding computation of short term capital gain or sample copies of the purchase/sale note were furnished during the assessment proceeding. In the circumstances, according to the Assessing Officer reopening of the assessment was valid and justified.

9. Mr. Percy Pardiwala, learned Senior Counsel in support of the petition submits as under:

(a) The impugned order dated 20 November 2013, rejecting the petitioner’s objection to notice dated 28 March 2013 under Section 148 of the Act is unsustainable. This is for the reason that reopening is being done on mere change of opinion which does not constitute a reason to believe that income chargeable to tax has escaped assessment. The very basis of the reasons for re-opening viz. the gains arising from purchase and sale of shares is taxable as business income and not as capital gain was examined during the course of assessment proceedings, leading to the assessment order dated 12 October 2010. This is evident from the petitioner’s letter dated 8 September 2010 during Assessment proceedings. Thus, this notice for re-opening is only on account of change of opinion i.e. a different interpretation/view of facts which were already examined in the original proceedings leading to order dated 12 October 2010.

(b) The impugned order dated 20 November 2013 rejecting the petitioner’s objections to re-opening the assessment proceeds on a factually incorrect basis i.e. no sample copy of purchase/sale note or Demat statement was furnished by the assessee during the course of assessment proceeding. This, in spite of the fact that the petitioner by its letter dated 13 September 2010 had furnished copies of its De-mat Account as well as sale/ purchase note during the proceeding leading to the assessment order dated 12 October 2013; and

(c) The Assessing Officer completely ignored the fact that in assessment proceedings for earlier years i.e. A.Y. 2005-06 and 2006-07 and even in the subsequent A.Y. 2009-10, the petitioner has been treated as investor in shares and not as trader in shares. In fact, attention was drawn to order dated 25 November 2011 for A. Y. 2009-10 where the petitioner had claimed a loss on short term capital account, it was not set off against business income. In fact, if the revenue had applied the same test which it now seeks to apply i.e. profit/loss on sale of shares is on account of business then a set off would be permissible of the capital loss against business profits and no tax would be payable. In the above circumstances, it was submitted that purchase/sale of shares as investments was to be taxed under the head ‘capital gain’ alone on the principle of consistency as held by this Court in CIT v. Gopal Purohit [2011] 336 ITR 287/[2010] 188 Taxman 140.

10. As against the above, Mr. Chhotaray, learned Counsel appearing for the respondent-revenue in support of the impugned notice dated 28 March 2013 and the impugned order dated 19 November 2013 submits as under:—

(a) The issue whether income received on account of sale of shares is chargeable to tax as business income or not was not a subject matter of consideration during the assessment proceedings leading to the order dated 12 October 2010 in respect of A.Y. 2008-09. This is evident from the fact that the assessment order dated 12 October 2010 does not even advert to this issue. In the circumstances, as this issue is being considered for the first time, no question of change of opinion on the part of the Assessing Officer can arise. It was submitted that during the original assessment proceedings leading to order dated 12 October 2010, no opinion has been formed on this issue by the Assessing Officer;

(b) The entire exercise for reopening assessment for A.Y. 2008-09 was on the basis of the audit objections dated 29 September 2011 received by Assessing officer from the Internal Audit Wing of the respondent. A copy of the Audit report dated 29 September 2011 was handed across the bar. It was submitted that this audit report has pointed out that the petitioner had manipulated its account in such a manner that the regular business of the assessee of trading in shares was hidden resulting in business income of trading in shares being taxed as capital gain arising out of investment. It was on the basis of the aforesaid material received from the audit that notice to reopen the assessment for assessment year 2008-09 was issued. This was the tangible material before the Assessing Officer which warranted reopening the assessment for assessment year 2008-09 even if it is assumed that all facts were available to the Assessing Officer during the assessment proceedings leading to Assessment Order dated 12 October 2010; and

(c) Merely because the petitioner’s claim for being charged to tax under the head ‘capital gain’ instead of the head “Profits and gains of business or profession had been accepted for earlier and subsequent years by the revenue it would not follow that for assessment year 2008-09 under consideration, the same has to be blindly accepted. It is submitted that each assessment year is separate assessment year. Therefore, in the present facts the Assessing Officer has reasonable belief that income chargeable to tax has escaped assessment and on the basis of the such belief is entitled to re-open the Assessment.

11. In this case we are dealing with the reopening of assessment completed by order dated 12 October 2010 under Section 143(3) of the Act. The law with regard to reopening of assessment is fairly settled by decisions of Courts. The power of the Assessing Officers under Sections 147 and 148 of the Act to reopen an assessment is classified into two :—

(a) Reopening of assessment within a period of 4 years from the end of the relevant assessment year and

(b) Reopening of assessment beyond a period of 4 years from the end of the relevant assessment year.

The common jurisdictional requirement for reopening of assessment both within and beyond a period of 4 years has to be on the basis of reason to believe that income chargeable to tax has escaped assessment and the reason for issuing a notice to reopen are recorded before issuing a notice. However, there is one additional jurisdictional requirement to be satisfied while seeking to reopen the assessment beyond the period of 4 years from the end of the relevant assessment year viz. that there must have been a failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment during the original assessment proceedings. Thus the primary requirement to reopen any assessment is a reason to believe that income chargeable to tax has escaped assessment. However, as observed by the Supreme Court in the case of CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561/187 Taxman 312 in the context of Sections 147/148 of the Act that reason to believe found therein does not give arbitrary powers to reopen an assessment. The concept of change of opinion is excluded/omitted from the words reason to believe. Thus a change of opinion would not be reason to believe that income chargeable to tax has escaped assessment. Besides the power to reassess is not a power to review. Further reopening must be on the basis of tangible material.

12. Therefore the power to reassess cannot be exercised on the basis of mere change of opinion i.e. if all facts are available on record and a particular opinion is formed, then merely because there is change of opinion on the part of the Assessing Officer notice under Section 147/148 of the Act is not permissible. The powers under Section-147/148 of the Act cannot be exercised to correct errors/mistakes on the part of the Assessing Officer while passing the original order of assessment. There is a sanctity bestowed on an order of assessment and the same can be disturbed by exercise of powers under Sections 147/148 of the Act only on satisfaction of the jurisdictional requirements. Further, the reasons for reopening an assessment has to be tested/examined only on the basis of the reasons recorded at the time of issuing a notice under Section 148 of the Act seeking to reopen an assessment. These reasons cannot be improved upon and/or supplemented much less substituted by affidavit and /or oral submissions. Moreover, the reasons for reopening an assessment should be that of the Assessing Officer alone who is issuing the notice and he cannot act merely on the dictates of any another person in issuing the notice. Moreover, the tangible material upon the basis of which the Assessing Officer comes to the reason to believe that income chargeable to tax has escaped assessment can come to him from any source, however, reasons for the reopening has to be only of the Assessing Officer issuing the notice. At the stage of issuing notice under Section 148 of the Act to reopen a concluded assessment the satisfaction of the Assessing Officer issuing the notice is of primary importance. This satisfaction must be prima facie satisfaction of having a reason to believe that income chargeable to tax has escaped assessment. At the stage of the issuing of the notice under Section 148 of the Act it is not necessary for the Assessing officer to establish beyond doubt that income indeed has escaped assessment.

13. Keeping in view the above broad parameters of the jurisdiction of the Assessing Officer to reopen assessments completed under Section 143(3) of the Act, the impugned notice and order have to be examined. Counsel for the parties proceeded on the basis that the impugned notice dated 28 March 2013 seeking to reopen the assessment for A.Y. 2008-09 was a notice within a period of four years from the end of the relevant assessment year. Therefore, in such a case the test of failure to disclose truly and fully all material facts necessary for assessment during the original assessment proceedings does not arise for consideration. In the present facts the notice to reopen the assessment for A.Y. 2008-09 was issued on 28 March 2013 and the reasons seeking to reopen the assessment is that the petitioner had so written/ manipulated its account that the normal business profits in share trading was claimed as short term capital gain so as to attract the lower rate of tax.

14. We find that during the assessment proceedings the petitioner had by a letter dated 9 July 2010 pointed out that they were engaged in the business of financing trading and investment in shares and securities. Further, by a letter dated 8 September 2010 during the course of assessment proceedings on a specific query made by the Assessing Officer, the petitioner has disclosed in detail as to why its profit on sale of investments should not be taxed as business profits but charged to tax under the head capital gain. In support of its contention the petitioner had also relied upon CBDT Circular No.4/2007 dated 15 June 2007. (The reasons for reopening furnished by the Assessing Officer also places reliance upon CBDT Circular dated 15 June 2007). It would therefore, be noticed that the very ground on which the notice dated 28 March 2013 seeks to reopen the assessment for assessment year 2008-09 was considered by the Assessing Officer while originally passing assessment order dated 12 October 2010. This by itself demonstrates the fact that notice dated 28 March 2013 under Section 148 of the Act seeking to reopen assessment for A.Y. 2008-09 is based on mere change of opinion. However, according to Mr. Chhotaray, learned Counsel for the revenue the aforesaid issue now raised has not been considered earlier as the same is not referred to in the assessment order dated 12 October 2010 passed for A.Y. 2008-09. We are of the view that once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment. It is not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. If an Assessing Officer has to record the consideration bestowed by him on all issues raised by him during the assessment proceeding even where he is satisfied then it would be impossible for the Assessing Officer to complete all the assessments which are required to be scrutinized by him under Section 143(3) of the Act. Moreover, one must not forget that the manner in which an assessment order is to be drafted is the sole domain of the Assessing Officer and it is not open to an assessee to insist that the assessment order must record all the questions raised and the satisfaction in respect thereof of the Assessing Officer. The only requirement is that the Assessing Officer ought to have considered the objection now raised in the grounds for issuing notice under Section 148 of the Act, during the original assessment proceedings. There can be no doubt in the present facts as evidenced by a letter dated 8 September 2012 the very issue of taxability of sale of shares under the head capital gain or the head profits and gains from business was a subject matter of consideration by the Assessing Officer during the original assessment proceedings leading to an order dated 12 October 2010. It would therefore, follow that the reopening of the assessment by impugned notice dated 28 March 2013 is merely on the basis of change of opinion of the Assessing Officer from that held earlier during the course of assessment proceeding leading to the order dated 12 October 2010. This change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment.

15. It was contended by Mr. Chhotaray appearing for the revenue that this is not a case of change of opinion as the reopening is based on fresh tangible material namely audit report furnished by the internal audit department of the revenue. This material viz. audit report dated 29 September 2011 could never have been considered by the Assessing Officer while passing his assessment order dated 12 October 2010. We find that neither the reasons furnished to the petitioner disclose the material obtained from the audit report of the internal audit department of the revenue as the basis for reopening assessment nor the order dated 20 November 2013 rejecting the petitioner’s objection state that the ground for reopening is the tangible material disclosed by the internal audit department of the revenue. This Court in the matter of Hindustan Lever v. R.B. Wadkar [2004] 268 ITR 332/137 Taxman 479 has held that the challenge to reopening of an assessment can only be resisted on the basis of the reasons recorded at the time of issuance of notice and no further reasons either orally at the bar or by filing of an affidavit can be considered to meet the challenge to reopening of an assessment. Therefore, it would not be permissible for Mr. Chhotaray to advance submissions on the basis of an audit report which was not basis of the reasons recorded at the time of issuing notice under Section 148 of the Act.

16. Be that as it may, even if, one examines audit report dated 29 September 2011 from the internal audit department it would be noticed that the basis of the audit report is the interpretation/inference drawn by the auditors from the accounts submitted by the petitioner to the department during the course of its assessment proceedings. The reasons as indicated in the audit report are similar to the reasons as set out in the grounds for reopening the assessment by the Assessing officer. Neither the audit report nor the ground for reopening assessment disclose any tangible material for the purpose of reopening the assessment but relies upon opinion/inferences drawn by the internal audit department on existing material and these inferences/opinion differ from the one drawn by the Assessing Officer while passing assessment order dated 12 October 2010. Tangible material would mean factual material and not inference/opinion on material already in existence and considered during the assessment proceedings. This is not a case of any new fact being available by virtue of internal audit which could lead to a reasonable belief that income chargeable to tax has escaped assessment. The internal audit report dated 29 September 2011 is an opinion/inference on facts i.e. the accounts and therefore, would not be tangible material to reopen an assessment.

17. One of the grounds set out in order dated 20 November 2013 for rejecting the petitioner’s objection on reopening the assessment for A.Y. 2008-09 was that the petitioner had failed to furnish sample contract note, Demet account and shareholding pattern of the companies to whom loans were advanced. This ground is factually incorrect. In fact, the petitioner by its letter dated 13 September 2010 had supplied the Assessing officer with sample of contract note, Demet account statement and also share holding pattern of the companies to whom the loans were advanced. It therefore, follows that grounds for rejecting the petitioner’s objection to reopen the assessment are contrary to the facts on record and therefore, cannot be sustained.

18. It was also urged by the petitioner that for the earlier assessment year as well as subsequent assessment year the petitioner has been treated as investor in shares and not as trader. This would be a submission on merits of the matter and normally would not have been dealt with it in a challenge to reopening of assessment. However, we are considering the same as the peculiar facts of this case would indicate the absence of reason to believe that income has escaped assessment. This is so, as much after the objection of the internal audit dated 29 September 2011 the Assessing Officer while passing the assessment order dated 25 November 2011 for A.Y.2009-10 had treated the petitioner’s loss on sale of shares as loss on investment and classified it as short term capital loss and not as business loss. This was only because the revenue was conscious of the fact that if the capital gain/loss was to be treated as business loss for A.Y. 2009-10 (as is now contended by the revenue for A.Y. 2008-09) then in that event the petitioner would have an opportunity to set off its profit of Rs.75.60 lacs on account of profit and gain of business from the losses suffered on sale/purchase of shares of Rs.1.59 crores. In such a case no tax at all would be payable. The aforesaid order dated 25 November 2011 for A.Y. 2009-10 by the Assessing Officer continues to reflect the view of the Assessing Officer that the profits and gains on account on sale of shares arises out of the petitioner’s investment in shares and is not taxable as business income. This Court in the matter of Gopal Purohit (supra) has taken a view that though the principle of res-judicata is not applicable to tax matters as each year is separate and distinct, nevertheless where facts are identical from year to year, there has to be uniformity and consistency in treatment. In view of the above, the fact that the revenue has been treating the profit on sale of shares as taxable under the head capital gain the same should be done in this year also in the absence of different facts.

19. On all the aforesaid grounds, we are of the view that the impugned notice dated 28 March2013 under Section 148 of the Act seeking to reopen the assessment for A.Y.2008-09 and the order dated 20 November 2013 rejecting the petitioner’s objection to reopen the assessment for A.Y. 2008-09 are not sustainable in law. The entire proceeding for reopening the assessment for A.Y. 2008-09 had emanated only on account of change of opinion on the part of the Assessing Officer.

20. In view of the discussion in Paragraphs 3 to 7 herein above, we set aside the assessment order dated 19 December 2013. We also hold that there was no reason for the Assessing Officer to have had a reasonable belief that income chargeable to tax has escaped assessment. Accordingly, we set aside the impugned notice dated 28 March 2013 issued under Section-148 of the Act as well as the impugned order dated 20 November 2013 passed by the Assessing Officer rejecting the petitioner’s objection to reopen the assessment for A.Y. 2008-09.

21. The petition is allowed. No order as to costs.

[Citation : 362 ITR 403]