16 915-Aswp-7867-2023.Doc v. Deputy Commissioner Of Income Tax,International Tax Circle-3(2)(1)Having Her Office At Room

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7867 OF 2023 MFE Formwork Technology SDN.BHD.,Having its registered office at Lot 4 & 6, Jalan Tun Perak 3, PerdanaIndustrial Park, 42000 Port KlangSelangor Darul Ehsan, Malaysia…Petitioner Versus 1.Deputy Commissioner of Income Tax,International Tax Circle-3(2)(1)having her office at Room No.1615,16[th] Floor, Air India Building,Nariman Point,Mumbai-400 021. 2.Principal Chief Commissioner of Income-tax,(International tax),having his office at Room No.305, 3[rd] Fl.E-2 Block, Civic Centre, Minto Road,New Delhi, Delhi-110002.tax,(International tax),having his office at Room No.305, 3[rd] Fl.E-2 Block, Civic Centre, Minto Road,New Delhi, Delhi-110002. 3.Union of India,through the Secretary, Department ofRevenue, Ministry of Finance,2[nd] Floor, Aaykar Bhavan,M K Marg, Mumbai – 400 020.…Respondents Mr. Percy Pardiwalla, Senior Advocate, with Mr. Harsh Kothari,for Petitioner. Mr. Subir Kumar, with Ms. Sruti Kalyanikar, for Respondents. CORAM:K. R. SHRIRAM &DR. NEELA GOKHALE, JJ.DATED:28[th] March 2024 JUDGMENT: (Per Dr. Neela Gokhale, J.) 1.Rule. Rule made returnable forthwith. By consent of theparties, the matter is taken up for final disposal. 2.Petitioner assails notices dated 27[th] March 2023, 30[th] March2023, and 13[th] April 2023 all, issued under section 148A(b) of theIncome Tax Act, 1961 (“the Act”), order dated 25[th] April 2023 passedunder Section 148A(d) of the Act and notice dated 25[th] April 2023issued under Section 148 of the Act to reopen the assessment forAssessment Year (“AY”) 2016–17. It is the case of Petitioner that thesaid notices and order are illegal, untenable, and contrary to theprovisions of the Act. 3.Petitioner is a company incorporated in Malaysia, resident ofMalaysia and also assessed to tax in Malaysia. Petitioner is engaged inthe business of manufacturing and selling aluminum form work to itscustomers. It is an associated enterprise of an Indian companynamely, MFE Formwork Technology India Private Ltd (“MFE India”).Petitioner entered into a marketing service agreement and a technicalservice agreement with MFE India. MFE India constitutes aDependent Agent Permanent Establishment (“DAPE”) of Petitioner inIndia and determines profits that are attributable to its DAPE in Indiaand accordingly offers the same to tax in India. 4.For AY 2016–17, Petitioner filed its original Return of Income(“ROI”) on 4[th] August 2016, declaring a total income of Rs.3,72,58,690/-. Petitioner filed revised ROI on 30[th] November 2016wherein the income remained unchanged but Petitioner revised itsclaim for credit of Tax Deducted at Source (“TDS”). The case ofShivgan Petitioner was selected for scrutiny assessment under Section 143(3)of the Act. The Assessing officer (“AO”) required Petitioner to providedetails as sought in his notice dated 24[th] July 2018 issued underSection 142(1) of the Act and a descriptive note on the nature ofactivity conducted in India, computation of total income and taxcomputation, Form 3CEB, copy of tax residency certificate,explanation on high ratio of refund to TDS, etc. 4.For AY 2016–17, Petitioner filed its original Return of Income(“ROI”) on 4[th] August 2016, declaring a total income of Rs.3,72,58,690/-. Petitioner filed revised ROI on 30[th] November 2016wherein the income remained unchanged but Petitioner revised itsclaim for credit of Tax Deducted at Source (“TDS”). The case ofShivgan Petitioner was selected for scrutiny assessment under Section 143(3)of the Act. The Assessing officer (“AO”) required Petitioner to providedetails as sought in his notice dated 24[th] July 2018 issued underSection 142(1) of the Act and a descriptive note on the nature ofactivity conducted in India, computation of total income and taxcomputation, Form 3CEB, copy of tax residency certificate,explanation on high ratio of refund to TDS, etc. 5.Vide its reply dated 6[th] August 2018, Petitioner submitted thedescriptive note on the activities carried out and other detailsrequired by the AO. During the course of assessment, the AO calledfor certain additional details from time to time, which also Petitionerprovided by its detailed submission dated 26[th] September 2018. Uponconsideration of all the relevant material provided by Petitioner asrequired by the AO, assessment order dated 21[st] December 2018under Section 143(3) of the Act was passed accepting the incomereturned by Petitioner. Despite this, Petitioner was issued show causenotice dated 27[th] March 2023 under Section 148 A(b) of the Actcalling upon Petitioner to show cause as to why notice under Section148 of the Act should not be issued against it. The notice wasaccompanied by reasons to believe escapement of income. Anothernotice dated 30[th] March 2023, also under section 148A(b) of the Act,was issued once again calling upon Petitioner to similarly show cause.Petitioner brought to the notice of the AO regarding issuance of duplicate notices for the same assessment year and informed the AOthat Petitioner was responding to the latter show cause notice. Ashow cause notice dated 13[th] April 2023 also under Section 148A(b)of the Act was issued Suo-moto extending the time given to Petitionerto file its reply. 6.Petitioner, by letter dated 14[th] April 2023, filed its objections tothe initiation of proceedings under Section 147 of the Act. Thesubmissions of Petitioner were rejected by the impugned order dated25[th] April 2023 passed under Section 148A(d) of the Act and noticedated 25[th] April 2023 under Section 148 of the Act was issued.Petitioner, by a letter dated 22[nd] May 2023, requested the AO toextend the time to file ROI in response in view of the amendmentmade in Section 148 of the Act by the Finance Act, 2023 extendingtime up to 31[st] July 2023. There was no response from the AO andPetitioner was compelled to file its ROI for AY 2016–17 on 25[th] May2023. It is these notices and the order rejecting objections that areimpugned in the present Petition. 7.Mr. Pardiwalla, learned Senior Counsel appearing for Petitioner,challenges the action of the AO primarily as untenable for lack ofsatisfaction of the prerequisite jurisdictional conditions. Theadditional contentions of Mr Pardiwalla are briefly encapsulated asunder : (a) The genesis of the information with the AO was an order passed by Commissioner of Income Tax under Section263 of the Act for AY 2017–18. The said order stood set asideby the Income Tax Appellate Tribunal (“ITAT”) upon an appealpreferred by Petitioner. Since the only information sought to berelied upon by the AO to allege escapement of income was thesaid order passed under Section 263 of the Act, which itselfdoes not survive, notices and the order impugned cannot besustained. 7.Mr. Pardiwalla, learned Senior Counsel appearing for Petitioner,challenges the action of the AO primarily as untenable for lack ofsatisfaction of the prerequisite jurisdictional conditions. Theadditional contentions of Mr Pardiwalla are briefly encapsulated asunder : (a) The genesis of the information with the AO was an order passed by Commissioner of Income Tax under Section263 of the Act for AY 2017–18. The said order stood set asideby the Income Tax Appellate Tribunal (“ITAT”) upon an appealpreferred by Petitioner. Since the only information sought to berelied upon by the AO to allege escapement of income was thesaid order passed under Section 263 of the Act, which itselfdoes not survive, notices and the order impugned cannot besustained. (b) Secondly, all material information includingmethodology for attribution of profit along with FAR analysiswas fully disclosed and other details as required by the AOwere provided by Petitioner and were within the knowledge ofthe AO at the time of passing of the original assessment order.There was thus, no tangible material to arrive at a conclusionthat income had escaped assessment. This also amounts toreopening of assessment proceedings on the basis of a changeof opinion which is also impermissible in law. (c) As provided in the first proviso of Section 149(1) of theAct, no notice under Section 148 of the Act can be issued atany time for an assessment year beginning on or before 1[st]April 2021. If a notice under Section 148 of the Act could nothave been issued at that time on account of being beyond thetime limit specified under Section 149(1)(b) of the Act as itstood immediately before the commencement of the FinanceAct, 2021, the only period to be excluded in the facts of thepresent case for computing the period of limitation is thatprovided in the fifth proviso to Section 149(1) of the Act. Inany event, as per Section 149 (1)(b) of the Act, notice cannotbe issued under Section 148 of the Act after a period of threeyears unless the AO had in his possession books of accounts or other evidence, pointing to income chargeable to taxrepresented in the form of an asset or expenditure or entry inthe books of account which has escaped assessment of Rs.50Lakhs or more. Thus, the impugned notice dated 25th April2023, being issued after a period of three years is bad in law. (d) Petitioner, admittedly, only has a DAPE in India and asper various decisions of the Apex Court, once an agent hasbeen remunerated on arm’s length basis, no further profits canbe attributed to Petitioner in India. In this context, the AOcannot be said to have any ‘information’ suggesting escapementof income. (e) Lastly, the initiation of reassessment proceedings isnothing but fishing and roving inquiry. The AO has notconducted any independent inquiry and thus, the entireassessment proceeding deserves to be quashed. 8. Mr. Subir Kumar, learned counsel, stoutly defended theRevenue and submitted as under: i. The Petition is not maintainable as it is premature. Thetimeline of the matter indicates that assessment under Section148 of the Act is yet pending adjudication and thus, filing ofPetition at this stage, is premature. As held by the Apex Courtin Anshul Jain v. Principal Commissioner of Income Tax& Anr.[1]if Petitioner has any grievance on merits, the same has to beagitated before the AO. ii. Petitioner has multiple alternative remedies under the Actsuch as an appeal before the Appellate Authority under Section246 of the Act or an alternative remedy to file a revision petition before the Jurisdictional Commissioner of Income Tax,who has the power to adjudicate on the matter under Section264 of the Act. iii. There is no prejudice caused to Petitioner in absence of anyrecovery of demand issued to Petitioner as no reassessmentorder for AY 2016–17 is yet passed and thus, the Petition ispremature. ii. Petitioner has multiple alternative remedies under the Actsuch as an appeal before the Appellate Authority under Section246 of the Act or an alternative remedy to file a revision petition before the Jurisdictional Commissioner of Income Tax,who has the power to adjudicate on the matter under Section264 of the Act. iii. There is no prejudice caused to Petitioner in absence of anyrecovery of demand issued to Petitioner as no reassessmentorder for AY 2016–17 is yet passed and thus, the Petition ispremature. iv. The procedure laid down and to be followed in such cases,have been strictly adhered to in the case of Petitioner.Information in the case of Petitioner was flagged on the portalof the Income Tax Department under CRIU/VRU cases. Theinformation was categorized under head of ‘any informationflagged in the case of the assessee for the relevant assessmentyear in accordance with the risk management strategyformulated by the board from time to time.’ The riskmanagement strategy of the Central Board for Direct Taxes(“CBDT”) for reopening cases is under a separate, centralizedteam that has developed and runs the insight E-portal toimplement the risk management strategy of the CBDT. Theinformation about Petitioner was flagged on the insight portalwith necessary details regarding the quantum of income havingescaped assessment. The explanation to Section 148 (1)(i) ofthe Act clearly mandated reopening of assessment in respect ofany information flagged as per the risk management strategy.The flagging of information on the insight portal being underthe supervision of the CBDT is hence ‘valid information’ underthe amended provisions of the Act. In these circumstances, theAO is well within his rights to arrive at a satisfaction that thecase of Petitioner is fit for reopening of assessment on theground that income has escaped assessment. v. According to the AO, his satisfaction is discretionary, andsufficiency of satisfaction is not a matter of judicialinterpretation at the stage of issuance of notice under Section148 of the Act. vi. Even on merits Petitioner has no case. Findings and conclusions 9.At the outset, we will deal with the contention of Mr.Pardiwalla relating to the gist of information available with the AOprompting him to issue the impugned notice dated 30[th] March 2023giving reasons for reopening assessment. The reasons for reopeningindicated in the notice is an order passed under Section 263 of theAct for AY 2017–18. Petitioner had been attributing 24% of its Globalprofit to itself on the FAR analysis carried out by it. The order dated25[th] March 2022 passed by the Commissioner of Income Tax(International)-3, Mumbai (“CIT”) under Section 263 of the Act heldthat Petitioner should have attributed 35% of its Global profit to itselfbased on the FAR analysis carried out by the Department. As per theAO, this issue is present even in AY 2015-16 and AY 2016-17.However, aggrieved by the said order passed by the CIT, Petitionerhad preferred an appeal before the Income Tax Appellate Tribunal(“ITAT”), Mumbai for AY 2017-18 being Appeal No.890/Mum/2022.The ITAT allowed the appeal and set aside the order passed by theCIT. We have considered the notice impugned as well as the order passed by the ITAT. The relevant portion of the notice dated 30[th]March 2023 impugned herein reads as under: “5. In this regard information received from the INSIGHT Portalas un11 ptder: Information to be shared in the case of MFEFormwork Technology SDN BHD post order u/s 263 for A.Y.2017-18 (PAN )” Gist of Information: passed by the ITAT. The relevant portion of the notice dated 30[th]March 2023 impugned herein reads as under: “5. In this regard information received from the INSIGHT Portalas un11 ptder: Information to be shared in the case of MFEFormwork Technology SDN BHD post order u/s 263 for A.Y.2017-18 (PAN )” Gist of Information: Assessee has been attributing 24% of its Global Profit to itselfbased on the FAR analysis carried out by the assessee. As per theorder u/s 263 of the IT Act, 1961 dated 25.03.2022 Assesseeshould have attributed 35% of its Global Profit to itself based onthe FAR analysis carried out by the Department. This issue ispresent even in AY 2015-16 and AY 2016-17 for which thisinformation is being shared, since it is an urgent Time barringMatter. Details of the issue as per the order u/s 263 of the IT Act, 1961dated 25.03.2022. From Page 27 of aforesaid show cause notice "Thus, since the assessee has been claiming every year high ratioof refund to TDS and showing Profit of just 24% of the GlobalProfit in India by applying FAR analysis submitted by theassessee itself, it becomes necessary to look into the FAR analysisof each year in light of the findings surfaced in order u/s 263 ofthe IT Act dated 25.03.2022 passed for A.Y. 2017-18. As per theprovisions of the I.T. Act, re-opening for A.Y. 2015-16 & AY2016-17 can be initiated up to 31.03.2022, this informationneeds to be shared and reflected in Insight portal for furthernecessary action at the AO's end.” 6. In view of the above information following facts emerge: a) the weight given to each activity is arbitrary and has noparameter to determine the extent and weight of activityinvolved in the global transactional process in the TP report ofthe assessee. The attribution of profit @35% as determined inthe order u/s 263 would be appropriate in this case. b) It is also clear that the assessee had adopted a dual taxpayerand part of the profit attributable to operations in India washeld taxable in the hands of DAPE. This fact was relevant indetermining the ALP for the Associated Enterprise i.e. MFEIndia. It is seen that the compensation made to AE are not atALP. The difference/adjustment has to be taxable in the hands ofDAPE. c) The method of computation of taxable profits in India isincorrect as the marketing fees paid to AE is after attribution ofGross Profit in India instead of being deducted before attributionof Profits in India. From Page 28 of aforesaid show cause notice 7. XXXXXXX 8. Therefore, based on the above observations which originatefrom the material/information available on record with thisoffice, income to the tune of Rs. 11,98,30,019/- has escapedassessment for the year under consideration. 9. You are hereby requested to furnish your reply explanationalong with supporting documents/evidence on or before14.04.2023, whichever is earlier. The explanation/replyfurnished by you in response to this Show Cause Notice, will beconsidered at the time of passing of order u/s 148A(d) of theAct in your case.” The relevant portion of the ITAT order is extracted as under-. 7. XXXXXXX 8. Therefore, based on the above observations which originatefrom the material/information available on record with thisoffice, income to the tune of Rs. 11,98,30,019/- has escapedassessment for the year under consideration. 9. You are hereby requested to furnish your reply explanationalong with supporting documents/evidence on or before14.04.2023, whichever is earlier. The explanation/replyfurnished by you in response to this Show Cause Notice, will beconsidered at the time of passing of order u/s 148A(d) of theAct in your case.” The relevant portion of the ITAT order is extracted as under-. "5. When this appeal came up for hearing. It was noticed thatadmittedly the form of permanent establishment is adependent agent permanent establishment (DAPE), and therealso does not seem to be any controversy about the positionthat the assessee has paid an arm's length remuneration forthe services rendered by the agent constituting the DAPE, ie,MFE India, as there is no ALP adjustment in respect of thepayment made by the assessee to the MFE, Yet, there is adispute about the FAR analysis, but that is because theassessee has proceeded on the dual taxpayer approach,recognizing the distinction between the dependent agent andthe dependent agency permanent establishment. While asimilar approach was approved and adopted by a coordinatebench in the case of DDIT Vs Set Satellite Pte Ltd [(2007)106(TD 175 (Mum)], wherein, speaking through one of us, theCoordinate bench upheld the dual taxpayer approach, butthen the said decision did not find favour with the Hon'bleHigh jurisdictional Court which has reversed the said decisionof the coordinate bench. We are thus alive to the fact that inthe light of Hon'ble Jurisdictional High Court judgment in thecase of Set Satellite Singapore Pte Ltd Vs DCIT [(2008) 307ITR 205 (Bom)], so far as profit attribution of a DAPE isconcerned, the prevailing legal position is that as long as anagent is paid an arm's length remuneration for the servicesrendered, nothing survives for taxation in the hands of thedependent agency permanent establishment. Viewed thus,the existence of a dependent agency permanentestablishment is wholly tax neutral, and there are a largenumber of decisions of the coordinate benches, followingHon'ble jurisdictional High Court's judgment in the case ofSet Satellite (supra), holding so. The question that we put tothe parties was whether an order can be said to be prejudicialto the interest of the revenue even when the income is determined on the basis of the correct legal position of thesingle taxpayer approach, which has the approval of theHon'ble jurisdictional High Court as also a series ofsubsequent decisions of the coordinate benches, is less thanthe income determined by the Assessing Officer in the orderbeing subjected to the revision proceedings When the aboveproposition was so put to the parties, learned counsel for theassessee submitted that when the very existence of DAPE, inthe light of the above legal position, is tax neutral, theattribution of profits in the dual taxpayer approach and theFAR analysis for that purpose is wholly academic, from thepoint of view of the revision proceedings, inasmuch as theprofit computation under the dual taxpayer approach cannotbe said to be prejudicial to the interest of the revenue whentax liability computed, in accordance with the law laid downby the Hon'ble, jurisdictional High Court, is NIL……………… 6. XXXXXXXX 7. XXXXXXXXX 8. XXXXXXXXX 6. XXXXXXXX 7. XXXXXXXXX 8. XXXXXXXXX 9. In view of the above discussions, as also bearing in theentirety of the matter, we are of the considered view that unlessthe order sought to be revised cannot be said to be prejudicial tothe interest of the revenue, its being erroneous, even if that beso, cannot be said to reason enough to invoke Section 263 of theAct, and the order cannot be said to be prejudicial to theinterests of the revenue unless there is a categorical finding thatthe dependent agent has not been paid arm's lengthremuneration for the functions performed. Assets employed andrisks assumed by the dependent agent. The order beingprejudicial to the interest of the revenue, in as much as thepayment to the dependent agent not being at an arm's length, isa sine qua non for holding that the order is prejudicial to theinterest of the revenue. This exercise has clearly not been doneon the facts of this case. For this short reason alone, we must setaside the impugned revision order." 10.It is also an admitted position that pursuant to the order passedby the ITAT, the AO also passed the Order giving effect to the ITATorder under Section 143(3) read with Section 254 of the Act on 14[th]September 2022 thereby nullifying the demand raised. Mr. Pardiwallafurther draws our attention to the admitted position that like AY2017-18, revision proceedings for AY 2018-19 and AY 2019-20 wereinitiated and an order under Section 263 of the Act was passed on 7[th] June 2022 and the ITAT following its order for AY 2017-18 hasquashed and set aside the revision orders by the CIT concerned. 11.No notice can be issued under Section 148 of the Act unlessthere is ‘information’ with the AO that income chargeable to tax hasescaped assessment. The only information forming the origin ofreason to believe escapement of income from assessment is contentsof the order passed by the CIT. In the light of the aforesaid admittedposition, as on date the order passed by the CIT does not survive, asbeing set aside by the ITAT, the very basis of the AO to reopenassessment and assume jurisdiction is misplaced and unjustifiable. 12.Another contention advanced by Mr. Pardiwalla is that theattempt to reopen assessment is based on a ‘change of opinion’ of theAO which is impermissible under tax jurisprudence. We have alreadynoted the contents of the notice dated 30[th] March 2023 as aforesaid.The concluding paragraph 8 of the same notice reads thus: “8.Therefore, based on the above observations which originatefrom the material/information available on record with thisoffice, income to the tune of Rs.11,98,30,019/- has escapedassessment for the year under consideration.” 13. The AO, by his letter dated 24[th] July 2018, had, during theoriginal assessment proceeding sought information from Petitioner aswell as a detailed descriptive note. The AO specified the details anddocuments that he required Petitioner to provide. Accordingly,Petitioner provided all the details as sought vide its reply dated 6[th] “8.Therefore, based on the above observations which originatefrom the material/information available on record with thisoffice, income to the tune of Rs.11,98,30,019/- has escapedassessment for the year under consideration.” 13. The AO, by his letter dated 24[th] July 2018, had, during theoriginal assessment proceeding sought information from Petitioner aswell as a detailed descriptive note. The AO specified the details anddocuments that he required Petitioner to provide. Accordingly,Petitioner provided all the details as sought vide its reply dated 6[th] August 2018, which followed another letter by the AO seekingfurther information. Petitioner by its letter dated 26[th] September2018 furnished further information as additionally sought by the AO.Thus, it is evident that Petitioner had disclosed completely and fullyall relevant information to the satisfaction of the AO and theassessment order was passed. Be that as it may, the impugned noticeis, in any case, based on the contents and findings of the CIT(International) Mumbai in his revision order, which order is alreadyset aside by the ITAT. That the order passed by ITAT is subjected to achallenge before this Court does not aid the Department since there isno order passed by this Court staying the effect of the order. On thecontrary, the AO himself has given effect to the ITAT order and passedan Order Giving Effect (“OGE”) to the ITAT order. In this view of thematter, the impugned notice is nothing but a ‘change of opinion’ bythe AO and as held in Aroni Commercials Limited v. DeputyCommissioner of Income Tax–2(1),[2] a reopening based upon changeof opinion is impermissible in law. 14.As regards Mr. Subir Kumar’s submissions that Petitioner hasmultiple alternative remedies under the Act and if the freshassessment order is passed, Petitioner has an opportunity ofchallenging the same before the Appellate Authority under the Act,none of them we are inclined to accept. In addition to variouspreliminary submissions as stated in paragraph 8 above,Mr. Subir 2(2014) 44 taxmann.com 304 (Bombay).ShivganShivgan Kumar tried to draw us into examining the merits of the reassessmentproceedings. We hasten to make it clear that in our writ jurisdictionunder Article 226 of the Constitution of India, we refrain fromallowing ourselves to be drawn in the submissions advanced relatingto the merits of the matter, especially when we are satisfied that theAO issued the impugned notices and the order without satisfying thejurisdictional pre-conditions. As such the AO has gone beyond hisjurisdiction to reopen assessment based upon information comprisingonly of an order which no more survives in view of the same alreadyset aside by the ITAT. 15.We agree with the submissions of Mr. Pardiwalla that if ‘changeof opinion’ concept is given a go by, that will result in giving arbitrarypowers to the AO to reopen assessments. It would in effect sanctifypowers to review which he does not possess. This Court in itsdecision in the matter of Siemens Financial Services Private Limited Vs. Deputy Commissioner of Income Tax & Ors.[3]has held as follows: “36 We would agree with the submissions of Mr. Pardiwalla thatif change of opinion concept is given a go by, that would resultin giving arbitrary powers to the Assessing Officer to reopen theassessments. It would in effect be giving power to review whichhe does not possess. The Assessing Officer has only power toreassess not to review. If the concept of change of opinion isremoved as contended on behalf of the Revenue, then in the-garb of reopening the assessment, review would take place. Theconcept of change of opinion is an in-built test to check abuse ofpower by the Assessing Officer. As held in Dr. Mathew Cherian (supra), whether under old ornew regime of reassessment, it is settled position that the issuesdecided categorically should not be revisited in the guise ofreassessment.That would include issues where query have been As held in Dr. Mathew Cherian (supra), whether under old ornew regime of reassessment, it is settled position that the issuesdecided categorically should not be revisited in the guise ofreassessment.That would include issues where query have been raised during the assessment and query have been answered andaccepted by the Assessing Officer while passing the assessmentorder. As held in Aroni Commercials (supra) even if assessmentorder has not specifically dealt with that issue, once the query israised it is deemed to have been considered and the explanationaccepted by the Assessing officer. It is not necessary that anassessment order should contain reference and/or discussion todisclose his satisfaction in respect of the query raised.TheDivision Bench of this court in Aroni Commercials Ltd. (supra)held it is not necessary that the assessment order should containreference and/or discussion to disclose its satisfaction in respectof the query raised. Paragraph 14 of Aroni Commercials Ltd.(supra) read as under: “14. We are of the view that once a query is raised during theassessment proceedings and the assessee has replied to it, itfollows that the query raised was a subject of consideration ofthe Assessing Officer while completing the assessment. It isnot necessary that an assessment order should containreference and/or discussion to disclose its satisfaction inrespect of the query raised. If an Assessing Officer has torecord the consideration bestowed by him on all issues raisedby him during the assessment proceeding even where he issatisfied then it would be impossible for the Assessing Officerto complete all the assessments which are required to bescrutinized by him under Section 143(3) of the Act. Moreover,one must not forget that the manner in which an assessmentorder is to be drafted is the sole domain of the AssessingOfficer and it is not open to an assessee to insist that theassessment order must record all the questions raised and thesatisfaction in respect thereof of the Assessing Officer. Theonly requirement is that the Assessing Officer ought to haveconsidered the objection now raised in the grounds for issuingnotice under Section 148 of the Act, during the originalassessment proceedings. There can be no doubt in the presentfacts as evidenced by a letter dated 8 September 2012 thevery issue of taxability of sale of shares under the head capitalgain or the head profits and gains from business was a subjectmatter of consideration by the Assessing Officer during theoriginal assessment proceedings leading to an order dated 12October 2010. It would therefore, follow that the reopening ofthe assessment by impugned notice dated 28 March 2013 ismerely on the basis of change of opinion of the AssessingOfficer from that held earlier during the course of assessmentproceeding leading to the order dated 12 October 2010. Thischange of opinion does not constitute justification and/orreasons to believe that income chargeable to tax has escapedassessment.” (emphasis supplied) 16. In view of the foregoing discussion, we have no hesitation in holding that the notices dated 27[th] March 2023, 30[th] March 2023, and 25[th] April 2023 passed under Section 148A(d) of the Act and noticedated 25[th] April 2023 issued under Section 148 of the Act to reopenthe assessment for AY 2016–17 cannot be sustained. In thecircumstances, we make the Rule absolute in terms of prayer clause (a) of the petition which reads thus: 16. In view of the foregoing discussion, we have no hesitation in holding that the notices dated 27[th] March 2023, 30[th] March 2023, and 25[th] April 2023 passed under Section 148A(d) of the Act and noticedated 25[th] April 2023 issued under Section 148 of the Act to reopenthe assessment for AY 2016–17 cannot be sustained. In thecircumstances, we make the Rule absolute in terms of prayer clause (a) of the petition which reads thus: “a. that this Hon’ble Court be pleased to issue a writ ofcertiorari or any other writ, order or direction in thatnature of certiorari under Article 226 of theConstitution of India calling for the records of the caseleading to the issue of the impugned first show causenotice, the impugned second show cause notice, theimpugned third show cause notice, passing of theimpugned order and the issue of the impugned noticeissued under Section 148 of the Act and after goingthrough the same and examining the question oflegality thereof quash, cancel and set aside theimpugned first show cause notice dated 27[th] March2023 (Exhibit G), the impugned second show causenotice dated 30[th] March 2023 (Exhibit H), theimpugned third show cause notice dated 13[th] April2023 (Exhibit J), the impugned order dated 25[th] April2023 (Exhibit L) and the impugned notice dated 25[th]April 2023 issued under section 148 of the Act(Exhibit M) for the assessment year 2016-17;” 17. There will be no order as to costs. (DR. NEELA GOKHALE, J.) (K. R. SHRIRAM, J.)