B) Mr. Pinto, Learned Counsel Appearing In Support Of The v. Kelvinator Of India Limited[1] Which Observed As Under

Priya Soparkar IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1147 OF 2016 Principal Commissioner of Income Tax-11 … Appellant V/s. Sun-n-sand Hotels Pvt. Ltd. … Respondent --- Mr.Arvind Pinto for the Appellant. Mr.R.Murlidhar i/by Mr.Atul Jasani for the Respondent. --- CORAM : AKIL KURESHI AND M.S.SANKLECHA, JJ. DATE : JANUARY 16, 2019. P.C.:- 1.This Appeal under Section 260-A of the Income Tax Act,1961 (the Act), challenges the order dated 15[th] September, 2015passed by the Income Tax Appellate Tribunal (the Tribunal). ThisAppeal relates to Assessment Year 2008-09. 2.The Revenue urges the following two questions of law forour consideration: “1.Whether in law and on the facts andcircumstances of the case, was the Tribunaljustified in upholding the orders of the CIT (A) quashing notice u/s 148 of the Act?2.Whether in law and on the facts of theinstant case was the Tribunal justified right inholding that sales tax rebate received by theCompany is profits “derived from the industrialundertaking” for the purposes of section 80IA ofthe Act?” 3. Re:Question No.1 (a)The impugned order of the Tribunal dismissed theRevenue's appeal before it holding that the reopening noticedated 7[th] July, 2013 seeking to reopen the Assessment Year2008-09 was without jurisdiction. This as the notice dated 7[th]July, 2013 was without jurisdiction, being based on change ofopinion. This for the reason that during regular Assessmentproceedings under Section 143(3) of the Act the AssessingOfficer had occasion to deal with the issue of sales tax benefitgiven by the State Government is revenue in nature but cannotqualify for deduction under Section 80IA of the Act as it is notderived from the Industrial undertaking which forms the basisof the recorded reasons to issue the reopening notice dated7[th] July, 2013. In the above facts, the impugned order hold thatthis would be a clear case of change of opinion. Therefore, as Priya Soparkar 313 itxa 1147-16-o-s the notice of reopening is without jurisdiction, the consequentorders of Assessment is also bad. (b)Mr. Pinto, learned counsel appearing in support of the appeal states that reopening notice dated 7[th] July, 2013 iswithin a period of less than four years from the end of theAssessment Year 2008-09. Therefore, the Assessing Officer hasjurisdiction to issue a reopening notice as the bar of the provisoto Section 147 of the Act is not applicable. (c)It is a settled position in law that reopening of assessmenteven within a period of four years from the end of the relevantAssessment Year cannot be done on the basis of a change ofopinion. If the Assessing Officer had occasion to deal with theissue which is the basis of the reopening notice (as reflected inthe recorded reasons), earlier in the regular assessmentproceedings under Section 143(3) of the Act, then the notice forreopening would be a case of reviewing the earlier order. This isnot permitted to held by the Supreme Court in CIT Vs.Kelvinator of India Limited[1] which observed as under : “We must also keep in mind the conceptualdifference between power to review and power to Priya Soparkar reassess. The Assessing Officer has no power toreview; he has power to reassess. But reassessmenthas to be based on fulfillment of certainpreconditions and if the concept of change ofopinion is removed as contended on behalf of theDepartment, then in the garb of reopening theassessment, review would take place. One must treatthe concept of change of opinion as an inbuilt testto check the abuse of power by the AssessingOfficer...” In the above view, the conclusion of the Tribunal in theimpugned order cannot be found fault with. “We must also keep in mind the conceptualdifference between power to review and power to Priya Soparkar reassess. The Assessing Officer has no power toreview; he has power to reassess. But reassessmenthas to be based on fulfillment of certainpreconditions and if the concept of change ofopinion is removed as contended on behalf of theDepartment, then in the garb of reopening theassessment, review would take place. One must treatthe concept of change of opinion as an inbuilt testto check the abuse of power by the AssessingOfficer...” In the above view, the conclusion of the Tribunal in theimpugned order cannot be found fault with. (d)In the above view, this question does not give rise to anysubstantial question of law. Thus, not entertained. 4.Re:Question No.2 (a)In view of the proposed question of law No. 1 above beingdismissed, this question has become academic. (b) Therefore, in the present facts, this question being academic,does not give rise to a substantial question of law. Thus, notentertained. 5.Accordingly, the appeal is dismissed. No order as to costs. (M.S.SANKLECHA,J.) (AKIL KURESHI,J.)