M/S.daimler India Commercial Vehicles Private Limited, Sipcot Industrial Growth Centre, Mathur Post, Oragadam Sriperumbudur, Kancheepuram, Chennai, Tamil Nadu – v. Deputy Commissioner Of Income Tax, Corporate Circle-1(1), Room

IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 04.01.2018 PRONOUNCED ON : 30.01.2018 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.43435 of 2016 and WMP.Nos.37296 & 37297 / 2016 M/S.Daimler India Commercial Vehicles Private Limited,SIPCOT Industrial Growth Centre,Mathur Post,Oragadam Sriperumbudur,Kancheepuram, Chennai,Tamil Nadu – 602 105acting through itsAuthorised representative Mr.Rishab jain ... Petitioner Vs.1.Deputy Commissioner of Income Tax, Corporate Circle-1(1), Room No.511, Wanaparthy Block, 121, M.G.Road, Nugambakkam, Chennai-600034. 2.Assistant Commissioner of Income Tax (OSD), Corporate Range 1, Room No.603, 6[th] Floor, Wanaparthy Block, 121, Mahatma Gandhi Road, Aayakar Bhavan, Nungambakkam, Chennai-600034. ... Respondents PRAYER:Petition filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorari calling for the recordsrelating to the impugned notice in PAN: passed by the1[st] respondent dated 24.03.2016 issued under Section 148 of theIncome tax Act relating to assessment year 2009-10 andconsequential impugned order in PAN: / 2009-10 passedby the 2[nd] respondent dated 25.10.2016. For Petitioner : Mr.Ajay Vohra, SC for Mr.N.P.Vijaya kumar For Respondents: Mr.T.Ravikumar for Mrs.Hema muralikrishnan. The petitioner is a Company incorporated during 2007 underthe provisions of the Companies Act, 1956 with its main objectsbeing Designing, Manufacturing, Distributing, Selling andconducting research and development of commercial vehicles andrelated products and components for Indian and overseas markets.In this writ petition, the petitioner has challenged the noticeissued by the 1[st] respondent under Section 148 of the Income TaxAct, 1961 (hereinafter referred as 'the Act' for brevity)stating that he has reasons to believe that the petitioner'sincome chargeable to tax for the assessment year 2009-10 hasescaped assessment within the meaning of Section 147 of the Act.The other order which is impugned in this writ petition is theorder passed by the 1[st] respondent dated 25.10.2016 rejecting thepetitioner's objection for reopening. 2. As mentioned above, the assessment year is 2009-10. Thepetitioner filed the return of income on 26.09.2009 underSection 139(1) of the Act declaring loss. The return wasselected for scrutiny and notices under Section 143 (2) andSection 142 (1) of the Act were issued. The petitioner wouldstate that during the assessment proceedings, the case of thepetitioner was referred to the Transfer Pricing Officer (hereinafter referred as 'TPO' for brevity) under Section 92 CA (1) ofthe Act, for determination of the arm's length price ofinternational transaction done by the petitioner with itsassociated enterprises. 2. As mentioned above, the assessment year is 2009-10. Thepetitioner filed the return of income on 26.09.2009 underSection 139(1) of the Act declaring loss. The return wasselected for scrutiny and notices under Section 143 (2) andSection 142 (1) of the Act were issued. The petitioner wouldstate that during the assessment proceedings, the case of thepetitioner was referred to the Transfer Pricing Officer (hereinafter referred as 'TPO' for brevity) under Section 92 CA (1) ofthe Act, for determination of the arm's length price ofinternational transaction done by the petitioner with itsassociated enterprises. 3. The petitioner participated in the assessmentproceedings as well as in the proceedings before the TPO. TheTPO vide order dated 27.12.2012 under Section 92 CA (3) of theAct accepted arm's length price of the internationaltransactions done by the petitioner with the associatedenterprises. The petitioner's case is that their AssessingOfficer after considering the order of the TPO and independentlyexamining the submissions / documents placed on record by thepetitioner, completed the assessment vide order dated 25.02.2013passed under 143(3) of the Act, and assessed the total loss ofthe petitioner after making certain disallowances by theimpugned notice dated 24.03.2016. The 1[st] respondent seeks toreopen the assessment for the relevant year. Pursuant to suchnotice, the petitioner vide letter dated 03.05.2016 reiteratedthe stand taken in the return dated 20.04.2016. Apart from thatthey sought for copy of the reasons recorded by the 1[st]respondent under Section 148 of the Act. The 1[st] respondent videletter dated 04.05.2016 provided the reasons for reopening. Thepetitioner by their letter dated 17.05.2016 filed theirobjection to the initiation of re-assessment proceedings, amongother things stating that the impugned notice is beyond jurisdiction, barred by limitation, based on change of opinionetc., and hence liable to be quashed. The 2[nd] respondent byimpugned order dated 25.10.2016, rejected the objections raisedby the petitioner. 4. Mr.Ajay Vohra, learned senior counsel appearing forMr.N.P.Vijayakumar, learned counsel for petitioner invited theattention of this Court to the audited financial statement ofthe petitioner for the financial year ending 31.03.2009 whichincludes the Profit and Loss Account, schedule of Fixed Assets,other Operating expenses etc., The learned senior counselreferred to the notes to financial statements to show thebackground of the Company, its significant accounting policieswhich includes Fixed Assets and Capital work in progress,research and development expenses and borrowing costs. Referringto paragraph 13 of the notes to financial statement, it ispointed out that the petitioner's Company was in the process ofsetting up a plant for manufacture of commercial vehicles andthe project developmental expenditure includes Rs.805,450,136/-towards research and development. 5. The learned counsel referred to the Form No.3CEB (underRule 10 E of the Rules) which is the report from the Accountantof the petitioner as required to be furnished under Section 92(E) relating to international transaction(s). In the said reportspecific reference was made to the notes under paragraph 13 toemphasize that it was clearly stated by the petitioner thatthere has been no production during the previous year ended31.03.2010. It is further submitted that the Assessing Officerissued notice under Section 142(1) of the Act dated 29.10.2010,for which the petitioner submitted their reply dated 08.11.2012along with five annexures of which annexure no.1 pertains tobrief note on the nature of the business activity of the Companyand submitted that in the said brief note, it has been statedthat the Company has signed a Memorandum of Understanding withthe Government of Tamil Nadu to set up a Truck manufacturingfacility at SIPCOT, Oragadam over 398 acres of land. Further,the brief note refers to the in-house R&D facility activity forresearch and development of new products and variants towardssupporting its manufacturing activity. 6. The learned senior counsel then referred to the orderpassed by the TPO dated 27.12.2012, wherein the officer hasnoted that the petitioner proposes to start commercialproduction in the year 2012. Further, it was pointed out thatthe details of the international transactions and the paymentfor research and development charges paid to their associatedenterprises in Germany. Thus, it is a case of the petitionerthat the Assessing Officer, while completing the scrutinyassessment and passing the order dated 24.01.2013 took note of 6. The learned senior counsel then referred to the orderpassed by the TPO dated 27.12.2012, wherein the officer hasnoted that the petitioner proposes to start commercialproduction in the year 2012. Further, it was pointed out thatthe details of the international transactions and the paymentfor research and development charges paid to their associatedenterprises in Germany. Thus, it is a case of the petitionerthat the Assessing Officer, while completing the scrutinyassessment and passing the order dated 24.01.2013 took note of the referral made to the TPO, the stand taken by the assesseethat they are approaching the ICICI bank for obtaining a loan ofRs.2,200/- crores for the purpose of seting up the facility formanufacture of commercial vehicles and specifically in paragraphno.4.1 (iv), the Assessing Officer has noted that during therelevant year, the Company has not commenced production andobserved that during the pre-production period, the expenditureincurred by the assessee such as interest on loans, commitmentcharges, project appraisal fee, loan processing fees in whatevername it is called, formed part of capital employed in industrialundertaking. Further the Assessing Officer noted the submissionof the assessee that after the Hero group exited from the jointventure in 2009 and the Company became a wholly owned subsidiaryof Daimler AG, it started its commercial production only in thefinancial year 2008-09, relevant to the assessment year 2009-10.Further, it is pointed out that in paragraph 6.2, the AssessingOfficer examined the case and found that disallowances underSection 14A requires to be made in accordance with 3[rd] limb ofRule 8 and accordingly computed the same. Therefore, it is thesubmission of the learned counsel that the Assessing Officer,while completing the scrutiny assessment, all materials wereavailable with the Assessing Officer and they were consideredand order was passed and the impugned proceedings is a clearcase of change of opinion. It is further submitted that thereasons for reopening states that the assessee has not fully andtruly disclosed the material fact that they had not commencedits business during the year and mere production of the accountbooks or other evidence before the Assessing Officer will notnecessarily amount to disclosure within the meaning of theexplanation (1) of Section 147 of the Act. It is submitted thatthe petitioner vide reply dated 17.05.2016 stated that thereasons furnished do not indicate any failure on the part of theassessee, specifically disclosed truly and fully any materialfact necessary for assessment and hence reopening is withoutjurisdiction. Further it was pointed out that from the readingof the reasons for reopening, it is evidently clear that thebelief of the Assessing Officer is purely based on the existinginformation which was provided during the course of originalassessment proceedings and based on the return of income filedfor the subject assessment year. The assessee referred toseveral decision to support their contention that reassessmentof income beyond four years is bad in law where the cumulativeconditions stipulated under Section 147 of the Act are notsatisfied; In the absence of fresh tangible material on record,reassessment is invalid; the mere change of opinion does notconstitute reason to believe that income chargeable to tax hasescaped assessment and reassessment merely on the basis ofdenial of deduction claimed in the subsequent year is invalid,as no fresh tangible material is available. The petitionerreferring to the decision of the Hon'ble Supreme Court of India in the case of GKN Driveshafts (India) Limited. vs. ITO reportedin 259 ITR 19 requested that a speaking order be passed on theirobjection, the respondents vide impugned order dated 25.10.2016has rejected the petitioner's objections stating that there hasbeen no discussion about the reasons for which the case has beenreopened now in the original assessment order, Hence no opinionhas been formed in this regard which may not amount to change ofopinion. Further in the original assessment, there is nodiscussion, no details were called for, no finding, eitherpositive or negative was arrived at during the course oforiginal assessment. Hence there is no question of change ofopinion. That mere production of books of account by assesseebefore the Assessing Officer, there can be no presumption thatall books were seen by the Assessing Officer and it is the dutyof the assessee to show all the relevant particulars in books ofaccounts, not mere production of books. The 1[st] respondentproceeded to refer certain paragraphs of the decision in thecase of Calcutta Discount Co. Limited vs. Income Tax Officerreported in 1961 [41] ITR 191 (SC). We need not refer to thoseparagraphs as the Assessing officer had referred to the minorityview recorded in the said judgment andtherefore, misdirected himself in relying on those paragraphs.Therefore to that extent, the observations and findings in theimpugned order should be eschewed. Further it is stated thatsufficiency of reasons for reopening cannot be questioned, onceexistence of materials is evident. Therefore, the 1[st] respondentobserved that the merits of the case will be analysed duringthe assessment proceedings by giving due opportunity of hearingto the assessee and so rejected the petitioner's objections. 7. The learned senior counsel submitted that there is nofailure on the part of the assessee to make full and truedisclosure of all particulars relevant for assessment and theAssessing Officer on consideration of the materials placedbefore him had completed scrutiny assessment under Section 143of the Act and present attempt of the 1[st] respondent is toreopen the same solely on account of change of opinion. Theassessee having disclosed clearly the manner of computation ofincome under the Head Profits and Gains from Business orProfession. Apart from adjustment in respect of expenditureincurred prior to the set up of the business, there can be noreopening. It is further submitted that Assessing Officer in thecourse of regular assessment proceedings formed an opinion thatthe factory was under construction, commercial production hadnot commenced not withstanding that the business of thepetitioner being a composite one had been set up, expenses forsetting up of the plant for manufacturing operations had beencapitalized. The profit/loss from the business which had alreadybeen set up, notwithstanding that manufacturing activity had notcommenced, was to be computed under the Head Profits and Gains from business or profession. Therefore, it is submitted thatthe present reassessment proceedings is merely an attempt toreappraise the materials and evidences already on record,predicated on mere change of opinion, which is impermissible.The following decisions were referred to support thepropositions as framed by the learned senior counsel for thepetitioner. (i).Reasons do not record failure on part of the assessee todisclose true and material facts-reassessment invalid:a.Fenner India Ltd.v.DCIT (Mad): 241 ITR 672 (Mad)b.Avtec Ltd. v. DCIT:395 ITR 434 (Del) (ii).Full and true disclosure – reassessment invalid:Karti P.Chidambaram v. ACIT: (2017) 88 taxmann.com 27 (Mad) (iii).Explanation 1 to section 147 – not applicableCIT v. Baer Shoes(India) (P.) Ltd:331 ITR 435 87(Del) (iv).Re-assessment on mere “change of opinion”- invalidCIT v. Kelvinator of India Ltd:320 ITR 561 (SC) (i).Reasons do not record failure on part of the assessee todisclose true and material facts-reassessment invalid:a.Fenner India Ltd.v.DCIT (Mad): 241 ITR 672 (Mad)b.Avtec Ltd. v. DCIT:395 ITR 434 (Del) (ii).Full and true disclosure – reassessment invalid:Karti P.Chidambaram v. ACIT: (2017) 88 taxmann.com 27 (Mad) (iii).Explanation 1 to section 147 – not applicableCIT v. Baer Shoes(India) (P.) Ltd:331 ITR 435 87(Del) (iv).Re-assessment on mere “change of opinion”- invalidCIT v. Kelvinator of India Ltd:320 ITR 561 (SC) (v).Re-assessment in absence of fresh tangible material – invalidCIT v. RPG Transmissions Ltd:359 ITR 673 (Mad) 8. Mrs.Hema Murali Krishnan, learned senior standingcounsel for the Revenue sought to sustain the impugnedproceedings by contending that there is a clear failure on thepart of the assessee in making full and true disclosure andwhile completing the scrutiny assessment, the assessing officerwill not go into the details contained in Form III CEV, whichwill be looked into only by Transfer Pricing Officer and only inthis document, the assessee has stated that production activityhas not commenced during the relevant year. Therefore, theAssessing Officer did not go into the aspect whether productionhad commenced and made certain observations in paragraph 4.1(4),which shows that the Assessing Officer was of the view thatcommercial production was commenced in the assessment year 2009-10. Thus, in the absence of any opinion being formed withregard to commencement of business, it is not a case of changeof opinion. 9. Relying upon the decision of the Hon'ble Supreme Courtin the case of A.L.A firm Vs. CIT reported in 1991 (55) taxmann497 (SC), it was submitted that it is not necessary that theinformation based on which reopening is made, must be extraneousto the record. Further, sufficiency of the reasons forreopening cannot be gone into and the petitioner should bedirected to participate in the assessment proceedings. Tosupport such contentions, reliance was placed on the decisionson the Hon'ble High Court of Rajastan in the case of CIT vs UmaChand Nahar, reported in 2007 (295) ITR 403 (Rajastan) 10. In reply, the learned senior standing counsel for thepetitioner reiterated the factual submissions and laid emphasison the notes to the accounts, stating that it is a veryimportant document which was considered by the AssessingOfficer, while completing the scrutiny assessment. Further, itis submitted that the decision of the Hon'ble Supreme Court ofIndia in A.L.A firm(Supra) was rendered in the context of theold law, which has been considered and distinguished by theHon'ble High Court of Delhi(Delhi) in PCIT vs. TATA Power DelhiDistribution Limited: ITA No.689 of 2016 dated 04.11.2016. Byway of rejoinder of the submission, the learned senior standingcounsel for the Revenue referred to the decision of the Hon'bleSupreme Court of India in Sowdagar Ahmed Khan Vs. ITO, reportedin 1968 (70) ITR 79 (SC) and pointed out that the assessee doesnot discharge his duty to disclose fully and truly the materialfacts by merely producing the books of account or otherevidences. 11. Heard, the learned counsel for the parties and perusedthe materials placed on record. 11. Heard, the learned counsel for the parties and perusedthe materials placed on record. 12. Before, I proceed to consider the factual aspects, itwould be necessary for this Court to first note the legalposition with regard to the exercise of powers by the firstrespondent under Section 147 of the Act. For this purpose, Iwould refer to one of the earliest decisions on the issuenamely, the decision of the Hon'ble Supreme Court in CalcuttaDiscount Company Limited Vs. ITO, reported in 1961 (41) ITR 191(SC). The said appeal was against the decision of the DivisionBench of the Calcutta High Court, which reversed the orderpassed by the Single Bench under Article 226 of the Constitutionof India, pertaining to reopening of the assessment underSection 34 of the Income Tax Act, 1948. The legal principleslaid down in the said decisions are culled out as hereunder: (i)Duty of disclosing of primary facts relevant tothe decision of the question before the AssessingAuthority lies on the assessee. (ii)When some account books or other evidences hasbeen produced, there is no duty on the assessee todisclose further facts, which on due diligence, theincome tax officer might have discovered.(iii) Duty on the assessee does not extend beyondthe full and truthful disclosure of all primary facts. (iv)Once all primary facts are before the AssessingAuthority, he requires no further assistance by way ofdisclosure. (v)It is for the Assessing Authority to decide whatinferences of facts can be reasonably drawn and whatlegal inferences have ultimately to be drawn. (vi)It is not for somebody else-far less theassessee - to tell the Assessing Authority whatinferences, whether of facts or law, should be drawn. (vii)It is meaningless to demand that the assesseemust disclose what inferences – whether of facts or law,the Assessing Officer would drawn from the primary facts. (viii)If from primary facts, more than one inferencecould be drawn, it would not be possible to say that theassessee should have drawn any particular inference andcommunicated it to the Assessing Authority. Therefore,the duty of the assessee is to disclose fully and trulyall primary relevant facts, it does not extend beyondthis. (ix)If there were in fact, some reasonable groundsfor thinking that there had been any non disclosure asregards any primary fact, which could have a materialbarring on the question of under assessment, that wouldbe sufficient to give the income tax officer to issuenotices for reopening. (x)Whether, these grounds were adequate or not forarriving at the conclusion that there was a nondisclosure of material facts would not be open for theCourts investigation. (xi)It is the duty of the assessee, who wants theCourt to hold that the jurisdiction was lagging, toestablish that the ITO had no material at all before himfor believing that there has been such non disclosure. 13. The legal principle which can be culled out from thedecision of this Court in Fenner (India) Limited Vs. DeputyCommissioner of Income Tax, reported in 241 ITR 672 (Madras).When power is invoked under Section 147 after the expiry of fouryears from the end of the assessment year, further pre-conditionfor such exercise is imposed by the proviso namely that therehas been failure on the part of the assessee to disclose fullyand truly all material facts necessary for his assessment forthat assessment year. Mere escape of income is insufficient tojustify the initiation of action after the expiry of four years.Such escapement must be by reason of the failure on the part ofthe assessee to truly and fully disclose the material facts https://hcservices.ecourts.gov.in/hcservices/ necessary for the assessment. The duty of an assesee is limitedto fully and truly disclosing all the material facts and is notrequired to prepare a draft assessment order. https://hcservices.ecourts.gov.in/hcservices/ necessary for the assessment. The duty of an assesee is limitedto fully and truly disclosing all the material facts and is notrequired to prepare a draft assessment order. 14. Bearing the above legal principle in mind, we may lookinto the factual scenario in the case on hand. As pointed outthe reasons for reopening, the Assessing Officer would admitthat he has referred to the details mentioned in the annexure tothe return filed by the assessee for the assessment year 2009-10. Thus, there was no independent material to come to theconclusion that there has been no full and true disclosure madeby the assessee. In such circumstances, it has to be seenwhether the 1[st] respondent was justified in reopening theassessment year The revenue contends that they can do so, basedon the decision in A.L.A firm (supra). The High Court of Delhiin the recent decision in the case of TATA Power DelhiDistribution considered this very issue wherein the Revenuerelied upon the decision in A.L.A firm. It was pointed out thatthe expression “reason to belief” was subject matter of theextensive discussion by the Full Bench of the Hon'ble High Courtof Delhi, in CIT Vs. Kelvinator of India Limited, reported in256 ITR 1 (Delhi) and the Hon'ble Supreme Court considered thecorrectness of that judgment and held that information receivedby the Assessing Officer, after completion of assessment alone,is the sound foundation for exercising power under Section 147read with Section 148. Therefore, the Court rejected thecontention of the Revenue by placing reliance on the decision inA.L.A. Firm. Further, it was pointed out that the judgment inA.L.A. Firm is concerned, assessment was for the year 1961-62,Section 147 was amended in 1989, Consequently, the declarationof law in A.L.A. Firm was of the pre existing law and the law asexisted was dealt with in Kelvinator of India Limited(Supra).At this juncture, it would be relevant to refer to the operativeportion of the Judgment of the Hon'ble Supreme Court of India inKelvinator of India Limited, reported in 256 ITR 1 (Delhi) andit is relevant to extract paragraph No.6 of the same which readsas follows: ''6. We must also keep in mind the conceptualdifference between power to review and power toreassess. The Assessing Officer has no power to review;he has the power to reassess. But reassessment has to bebased on fulfilment of certain preconditions and if theconcept of ''change of opinion'' is removed, ascontended on behalf of the Department, then, in the garbof reopening the assessment, review would take place.One must treat the concept of ''change of opinion'' asan in-built test to check abuse of power by theAssessing Officer. Hence, after 1[st] April, 1989, theAssessing Officer has power to reopen, provided there is''tangible material'' to come to the conclusion that there is escapement of income from assessment. Reasonsmust have a link with the formation of the belief. Ourview gets support from the changes made to Section 147of the Act, as quoted hereinabove. Under the Direct TaxLaws (Amendment) Act, 1987, Parliament not only deletedthe words ''reason to believe'' but also inserted theword ''opinion'' in section 147 of the Act. However, onreceipt of representations from the companies againstomission of the words ''reason to believe'', parliamentreintroduced the said expression and deleted.'' there is escapement of income from assessment. Reasonsmust have a link with the formation of the belief. Ourview gets support from the changes made to Section 147of the Act, as quoted hereinabove. Under the Direct TaxLaws (Amendment) Act, 1987, Parliament not only deletedthe words ''reason to believe'' but also inserted theword ''opinion'' in section 147 of the Act. However, onreceipt of representations from the companies againstomission of the words ''reason to believe'', parliamentreintroduced the said expression and deleted.'' 16. In the light of the above legal position, the impugnedproceedings are liable to be set aside for the sole reason thatthere was no tangible material available with the AssessingOfficer except that which was disclosed in the return of incomefiled by the petitioner for the relevant assessment year. Thishas been held to be not a sound foundation for exercising powerunder Section 147 read with Section 148 of the Act. This wouldbe sufficient to set aside the impugned proceedings. However,since elaborate submissions were made on either side, touchingupon the factual issues only to test whether reopening wasjustified or whether it was a change of opinion. I proposed toconsider the said issue. The question revolves upon whether thepetitioner had made full and true disclosure with regard to theyear of commencement of business. The assessee would contendthat there has been full and true disclosure. 17. The learned senior counsel for the assessee pointed outthat this aspect was mentioned in the return of income and dulyexplained in the notes to the financial statements, which formspart of the return of income and specifically dealt with by theTPO, as it was disclosed by the assessee in Form No.3 CEB. TheAssessing Officer issued notices under Section 142(1) of the Actand called for information, which were furnished along withletter dated 08.12.2012, a brief note on the business activityof the Company was furnished which shows that the petitioner wasto set up a truck manufacturing facility with R & D facilityactivity for Research and Development. The TPO considered thisissue and while passing the order dated 27.12.2017, specificallyrecorded that the commercial production proposes to start in theyear 2012. This material was available and considered by theAssessing Officer as could be seen from para 2 of the scrutinyassessment order dated 24.01.2013. 18. The learned senior standing counsel for the Revenuewould submit that the Assessing Officer will not look into FormNo.3 CEB and it is for the TPO, to take note of the same andonly in that said document, it has been stated that productionhas not commenced. I am unable to countenance the submission ofthe learned counsel for more than one reason. Firstly, 18. The learned senior standing counsel for the Revenuewould submit that the Assessing Officer will not look into FormNo.3 CEB and it is for the TPO, to take note of the same andonly in that said document, it has been stated that productionhas not commenced. I am unable to countenance the submission ofthe learned counsel for more than one reason. Firstly, assessment proceedings are not a one way proceedings, even inthe case of the assessee, the Assessing Officer while completingthe regular assessment, called for details and documents whichwere furnished by the assessee. As held by the Hon'ble SupremeCourt in Calcutta Discount Company Limited Vs. ITO, reported in1961 (41) ITR 191 (SC), nothing more is required on the part ofthe assessee except to furnish all material facts. There issufficient indication to show that the Assessing Officerconsidered the order passed by the TPO. This would besufficient to hold that the materials which were placed in FormNo.3 CEB, resulting in an order dated 27.12.2012, was part ofthe assessment file, perused by the Assessing Officer, but forwhich he would not have referred to the same in paragraph 2.Even assuming the Assessing Officer did not look into the FormNo. 3 CEB. he is bound to look into the order passed by theTPO, as he is required to see any other additions have beenmade. This is so because the order passed by the TPO is bindingon the Assessing Officer. Thus, I have no hesitation to holdthat the materials disclosed by the assessee were available withthe Assessing Officer and it is from such material, the presentimpugned reopening proceedings have been initiated. Thus, therespondent had initiated proceedings purely based on existinginformation which was provided by the assessee in the course oforiginal assessment and based on the return of income filed bythe assessee for the relevant year. The petitioner before theAssessing Officer placed the profit and loss account and thebalance sheet and the relevant annexures and notes to thefinancial statements. The notes are important material becauseit would disclose the details pertaining to various entries inthe profit and loss account and balance sheet and explain thestand taken by the assessee. So far as the fixed assets isconcerned in the balance sheet, the petitioner has indicatedthat the capital work is in progress. 19. Thus, in the absence of any new material in the handsof the Assessing Officer or discovery of some materials or a newinsight after the completion of the original assessment, thequestion of reopening does not arise. The conclusion arrived bythe Assessing Officer in the impugned order that merely thepetitioner has produced books of account before the AssessingOfficer and that there is no presumption that all the books wereseen by the Assessing Officer is factually incorrect, as duringthe course of assessment proceedings, documents and evidenceswere called for from the assessee which were produced and afterperusal of the same, the assessment was completed. As pointedout in several decisions, it is for the Assessing Officer toarrive at a conclusion based on the materials produced and it isnot for the assessee to suggest as to what conclusion thatshould be arrived as it has been held that the assessee is notexpected to submit a draft assessment order. 20. Thus, for all the above reasons, I am of the consideredview that the impugned reopening proceedings is a clear case ofchange of opinion as there has been full and true disclosure bythe assessee at the time of scrutiny assessment/originalassessment. The Assessing Officer had no tangible material tocome to a conclusion that there was no full and true disclosureand the reopening is based on the materials available on recordi.e., in the return of income filed by the assessee for therelevant assessment year and based on such material, reopeningcould not have been done as it has been held that informationreceived by the Assessing Officer, after the completion of theassessment alone is sound foundation for exercising power underSection 147 read with Section 148 of the Act. 21. Thus, for the above reasons, the impugned proceedingsare liable to be set aside. In the result, the writ petition isallowed and the impugned proceedings are quashed. Consequentlyconnected miscellaneous petitions are also closed. However thereshall be no order as to costs. Sd/- Assistant Registrar(CS V)Dated: 07.02.2018 * Error in typing the date of ordershown as 31.01.2015 and correctedas per order dated 21.06.2018and made in W.P. 43435/2016.Sd/- Assistant Registrar(CS V)Dated: 25.06.2018 //True Copy// Sub Assistant Registrar kak/skTo1.Deputy Commissioner of Income Tax, To be substituted to Corporate Circle-1(1),the order already Room No.511, Wanaparthy Block,despatched on 01.03.2018 121, M.G.Road, Nugambakkam, Chennai-600034. 2.Assistant Commissioner of Income Tax (OSD), Corporate Range 1, Room No.603, 6[th] Floor, Wanaparthy Block, 121, Mahatma Gandhi Road, Aayakar Bhavan, Nungambakkam, Chennai-600034. +2cc to Mr.NP.Vijayakumar, Advocate Sr.No.6775 +1cc to Mrs.Hema Karthikeyan, Advocate SR.No.7016 W.P.No.43435 of 2016 LRS(CO)SM:9.2.2018SP(25/06/2018)