Sca/20718/2019 Of Krishna Syn Fab Private Limited v. The Income Tax Officer Ward 1(1)(3)

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 20718 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE N.V.ANJARIA andHONOURABLE MR. JUSTICE BHARGAV D. KARIA ==========================================================1Whether Reporters of Local Papers may be allowedto see the judgment ?2To be referred to the Reporter or not ?3Whether their Lordships wish to see the fair copyof the judgment ?4Whether this case involves a substantial questionof law as to the interpretation of the Constitutionof India or any order made thereunder ?==========================================================KRISHNA SYN FAB PRIVATE LIMITED VersusTHE INCOME TAX OFFICER WARD 1(1)(3) ==========================================================Appearance:MR TUSHAR HEMANI SENIOR ADVOCATE WITH MS VAIBHAVI K PARIKH(3238) for the Petitioner(s) No. 1MR NIKUNT RAVAL WTIH MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 1========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIAandHONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 05/09/2022ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1.Heard learned Senior Advocate Mr. Tushar Hemani assisted by learned advocate Ms. Vaibhavi Parikh for the petitioner and learned advocate Mr. Nikunt Raval with learned advocate Mrs. Kalpana K. Raval for the respondents. 2.Having regard to the controversy involved inthis petition, with the consent of thethis petition, with the consent of the learned advocates for the respective parties,the petition is taken up for final hearing. 3.Rule returnable forthwith. Learned advocateMr. Nikunt Raval waives service of notice ofrule for the respondents. 4.The petitioner has preferred this petitionunder Article 226 of the Constitution ofunder Article 226 of the Constitution of India challenging the impugned notice dated 29.03.2019 issued under section 148 of theIncome Tax Act, 1961 (For short “the Act”)proposing to reopen the assessment for theAssessment Year 2013-2014. 5.Brief facts of the case are that the petitioner is a company incorporated underthe Companies Act, 1956. It is the case of the petitioner that during the Financial Year2012-2013 relevant to the Assessment Year2013-2014 i.e. the year under consideration,the petitioner had received advance ofRs.50,00,000/- (Rs.30,00,000+ Rs.20,00,000)on 18.03.2013 from one of the customersnamely M/s. Aristo Media and EntertainmentPvt. Ltd. through banking channel inconnection with a business transaction.However, the underlying business transactionwas not confirmed and hence, such amount ofRs.50,00,000/- was returned to the said partythrough the banking channel on 19.03.2013 itself i.e. the very next day. 5.1) The petitioner filed return of income for the year under consideration on29.09.2013 declaring total income at Rs.4,18,830/-. 5.2) The case of the petitioner for the year under consideration was selected forscrutiny assessment. It is the case of thepetitioner that various details andinformation were called for by the thenAssessing Officer and the same were dulyfurnished by the petitioner from time to time and the then Assessing Officer, after examining details furnished from time totime, framed assessment under section 143(3) of the Act vide order dated 18.01.2016 whereby total income of the petitioner wasdetermined at Rs.4,57,440/-. 5.3) The respondent thereafter issuednotice dated 29.03.2019 under section 148 ofthe Act seeking to reopen the case of thepetitioner for the year under consideration. 5.4) The petitioner filed return ofincome on 23.08.2019 in response to theimpugned notice and requested the respondentto supply copy of reasons for reopening. 5.5) The respondent supplied the copy of and the then Assessing Officer, after examining details furnished from time totime, framed assessment under section 143(3) of the Act vide order dated 18.01.2016 whereby total income of the petitioner wasdetermined at Rs.4,57,440/-. 5.3) The respondent thereafter issuednotice dated 29.03.2019 under section 148 ofthe Act seeking to reopen the case of thepetitioner for the year under consideration. 5.4) The petitioner filed return ofincome on 23.08.2019 in response to theimpugned notice and requested the respondentto supply copy of reasons for reopening. 5.5) The respondent supplied the copy of reasons for reopening vide letter dated30.08.2019. The reasons recorded by theAssessing Officer for reopening theassessment under section 147 of the Act readas under: “The assessee company filed itsreturn of income for the A.Y. 2013-14 on 29.09.2013 declaring totalincome at Rs.418830/-. The saidreturn of income was processed u/s143(1) of the 1.T. Act on Theassessee is engaged in the businessin trading of import/ export ofartificial silk cloth. Assessment inthe case of the assessee has been completed on 18.01.2016 by making,addition of various expenses andIncomewasdeterminedatRs.4,57,440/- 2. In this connection, informationhas been received from theDDIT(Inv). Unit 1(3), Ahmedabad thata search and survey operation wascarries out in the cases of ShriShirish Chandrakant Shah and otherson 09/04/2013 and on perusal andanalysis of the documents and otherevidences found and the statementsof Shri Shirish Chandrakant Shah andhis key employees on the evidencesseized/ impounded it has been foundthat Shri Shirish Chandrakant Shahis managing and controlling 212companies including 16 listedcompanies having offices spreadacross the country which are beingusedsoastofacilitateaccommodation entries to clientsagainst receipt of cash. Theevidences found and other enquiriesconducted during the search and postsearchproceedingsclearlyestablished that these 212 companiesare nothing but merely layers usedby Shirish Chandrakant Shah so as torunhisaccommodationentrybusiness. As per the informationreceived from the DDIT (Inv.) Unit1(3), Ahmedabad, Shirish C. Shahuses the infrastructure of 212companies managed and controlled byhim so as to provide following type ofaccommodationentriesforcommission. One time entry of share applicationmoney/ share capital and sharepremium. Accommodation entries of unsecuredloans. Accommodation entries of bogus long-term capital gain: (LTCGS) and attimes of short-term capital gain(SCG). Bogus turnover entries i.e. boguspurchases, sales and contractentries 3. On perusal of the informationreceived, it is noticed that theassessee M/s Krishna Syn Fab Pvt.Ltd is one of the beneficiaries ofabove accommodation entries and whohas taken entry of Rs 50,00,000/-from the company managed andcontrolledbyShriShrishChandrakant Shah, 4.1 The facts mentioned above andalso analysis of the informationavailable on record leads to theconclusion that the assessee hastakenaccommodationentryofRs.50,00,000/- from the company M/sAstro Media and Entertainment PvtLimited managed and controlled byShri Shirish Chandrakant Shah.Further, during the course ofassessment proceedings in the caseof the assessee for the A.Y. 2011- 12, on perusal of Bank accountstatement collected from the KotakMahindra Bank of the assessee, it isfound that the assessee has takenaccommodationentryof Rs.30,00,000/- and Rs.20,00,000 on18.03.2013 M/s Astro Media andEntertainment Pvt Limited managedand controlled by Shri ShirishChandrakant Shah. The assessee inits submission provided details ofloan and advances taken / given andalso details of purchase and sales,But, the assessee not provideddetails of these entries in itssubmission. 12, on perusal of Bank accountstatement collected from the KotakMahindra Bank of the assessee, it isfound that the assessee has takenaccommodationentryof Rs.30,00,000/- and Rs.20,00,000 on18.03.2013 M/s Astro Media andEntertainment Pvt Limited managedand controlled by Shri ShirishChandrakant Shah. The assessee inits submission provided details ofloan and advances taken / given andalso details of purchase and sales,But, the assessee not provideddetails of these entries in itssubmission. 4.2 In view of the above facts, itis clear that there is a default onthe part of the assessee to disclosefully and truly all material factsin respect of its income during theyear under consideration and,therefore, I have reason to believethat the income to the extent ofRs.50,00,000/-hasescapedassessment within the meaning ofExplanation 2(c) of Section 147 ofthe I.T. Act, for which the case ofthe assessee for the A.Y. 2013-14needs to be reopened u/s 147 of theI.T. Act 5 Applicability of provisions ofSection 147/151 to the facts of thecase. It is pertinent to mention here thatin this case the assessee has filedreturn of income for the year andassessment has been completed u/s 143(3) of the IT Act on 18.01.2016by accepting the Return Income ofthe assessee. Since 4 year has fromthe end of the relevant assessmentyear has expired in this case, therequirements to initiate proceedingsu/s 147 of the Act are reason tobelieve that Income for the yearunder consideration has escapedassessment because of failure on thepart of the assessee to disclosefully and truly all material factsnecessary for his assessment for theyear under consideration. It ispertinent to mention here thatreasons to believe that Income hasescaped assessment for the yearunder consideration have beenrecorded above in para 4 I havecarefully gone through the recordscontaining the submission made bythe assessee in response of variousnotices issued during the course ofassessment proceedings and noticedthat the assessee has not fully andtruly disclosed the material factsnecessary for his assessment for theyear under consideration. It is evident from the above factsthat the assessee had not truly andfully disclosed material factsnecessary for its assessment for theyear under consideration therebynecessitating reopening u/s 147 ofthe IT Act. It is true that the assessee hasfiled annual Return and AuditedProfit and loss account and balancesheet along with Return of Income where various information/ materialweredisclosed.However,therequisite full and true disclosureof all material facts necessary forassessment has not been made asnoted above. Therefore the case ofthe assessee also falls in theexplanation 1 of Section 147 of theIT Act. In this case more than four yearshave lapsed from the end ofassessment year under consideration.Hence necessary sanction to issuenotice u/s 148 has been obtainedseparatelyfromPrincipalCommissioner of Income-tax as perthe provisions of Section 151 of theAct.” 5.6) The petitioner, vide letter dated10.09.2019, raised the objections againstreopening of assessment. 5.7) The respondent, however, vide order dated 19.10.2019 disposed of such objections raised by the petitioner against reopeningholding that the reopening is justified. 5.8) Being aggrieved by the said impugned order, the petitioner has preferred the present petition. 6.Learned Senior Advocate Mr. Tushar Hemani forthe petitioner submitted that the conditionprecedent for the purpose of resorting toreopening proceedings under the provisions ofsection 147 of the Act is that there must beescapement of any income chargeable to tax.In the absence of escapement of any incomechargeable to tax, it is not open for theDepartment to reopen the case of an assessee. 5.6) The petitioner, vide letter dated10.09.2019, raised the objections againstreopening of assessment. 5.7) The respondent, however, vide order dated 19.10.2019 disposed of such objections raised by the petitioner against reopeningholding that the reopening is justified. 5.8) Being aggrieved by the said impugned order, the petitioner has preferred the present petition. 6.Learned Senior Advocate Mr. Tushar Hemani forthe petitioner submitted that the conditionprecedent for the purpose of resorting toreopening proceedings under the provisions ofsection 147 of the Act is that there must beescapement of any income chargeable to tax.In the absence of escapement of any incomechargeable to tax, it is not open for theDepartment to reopen the case of an assessee. 6.1) It was submitted that the mainground for reopening the assessment by theAssessing Officer was that the assessee hastaken accommodation entry of Rs. 50,00,000/-from the company M/s. Astro Media andEntertainment Pvt. Ltd. managed andcontrolled by Shri Shirish Chandrakant Shah.It was submitted that the underlying sum ofRs.50,00,000/- received from M/s. Aristo Media and Entertainment Private Limited wasan advance in connection with a businesstransaction. Such advance of Rs.50,00,000/-(Rs.30,00,000+ Rs.20,00,000) was received on18.03.2013 through banking channel. However,the underlying business transaction was notconfirmed and hence, such amount was returnedto the said party through the banking channelon 19.03.2013 itself i.e. the very next day.Thus, the transaction as to receipt of theunderlying sum was purely a businesstransaction which, somehow, could notmaterialize and hence, the amount so receivedfrom the said party was returned. Accordingly, no income element is embedded inthe transaction and hence, no addition can bemade in respect of the underlying sum. 6.2) It was further submitted that had itbeen the case that the underlying sum was anaccommodation entry, then such sum would not have been returned to the said party. Rather,such sum would have remained in the books ofaccounts of the petitioner so that thepetitioner could enjoy the benefits of suchsum. The very fact that the sum in questionwas returned would demonstrate that thepetitioner could not have been benefited byany means on account of the said transaction.It was submitted that when no addition can bemade at all, the question of escapement ofany income chargeable to tax does not ariseat all. Hence, the impugned notice issued bythe respondent under section 148 of the Actdeserves to be quashed. information gathered during the course ofsearch action carried out on 09.04.2013 inthe case of Shirish Chandrakant Shah was verymuch available with the Department whileframing assessment under section 143(3) of the Act in the case of the petitioner. Nonew tangible material has been unearthed bythe Department subsequent to framing of suchassessment under section 143(3) of the Act.Hence, while framing the assessment, it wasopen to the respondent to take any action inrespect of the transaction in question. However, the respondent chose not to doanything of such sort. Therefore, the impugned notice seeking to reopen theassessment deserves to be quashed and setaside. 6.4) Learned Senior Advocate Mr. Hemanifurther submitted the assessment for the yearunder consideration was framed under section143(3) of the Act and the same is now soughtto be reopened beyond the period of fouryears from the end of the relevant assessmentyear. It was submitted that an assessmentframed under section 143(3) of the Act can be However, the respondent chose not to doanything of such sort. Therefore, the impugned notice seeking to reopen theassessment deserves to be quashed and setaside. 6.4) Learned Senior Advocate Mr. Hemanifurther submitted the assessment for the yearunder consideration was framed under section143(3) of the Act and the same is now soughtto be reopened beyond the period of fouryears from the end of the relevant assessmentyear. It was submitted that an assessmentframed under section 143(3) of the Act can be reopened beyond the prescribed period of fouryears from the end of the relevant assessmentyear if and only if an income chargeable totax has escaped assessment by reason offailure on the part of the petitioner to filea return under section 139 or in response tothe notice issued under section 142(1) orsection 148 or (ii) to disclose fully andtruly all material facts necessary for hisassessment for that Assessment Year. It was submitted that there is no failure on thepart of the petitioner to disclose truly andfully all materials necessary for assessment.The transaction in question was also dulyreflected in the bank account of thepetitioner which was duly recorded in thebooks of accounts. The bank statement of thepetitioner was produced at the originalassessment stage along with books ofaccounts. Under such circumstances, it cannotbe said that there was any failure on the part of the petitioner as to full and truedisclosure. 6.5) It was submitted that as per section151 of the Act, no notice shall be issuedunder section 148 of the Act after the expiryof a period of four years from the end of therelevant assessment year unless the PrincipalChief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner issatisfied, on the reasons recorded by theAssessing officer, that it is a fit case forthe issue of such notice. It was submittedthat reopening in the case of the petitionerhas been sanctioned merely in a mechanicalmanner which is not permissible in the eye oflaw. 6.6) It was submitted that statutorynotice under section 148 can be issued if andonly if an Assessing Officer has reason to believe that any income chargeable to tax hasescaped assessment. It implies that anAssessing Officer himself must be satisfiedthat some income chargeable to tax hasescaped assessment. It was submitted that inthe present case no such satisfaction hasbeen recorded by the respondent himself andin fact, the respondent has merely reliedupon the information received from the DDIT(Inv.), Unit 1(3), Ahmedabad for the purposeof reopening the assessment in the case ofthe petitioner. In absence of any suchexercise at the end of the respondent, itbecomes clear that the assessment has beenreopenedmerelybasedonborrowedsatisfaction as against the statutoryrequirement of independent satisfaction.Hence, the impugned notice issued by therespondent under section 148 of the Act deserves to be quashed and set aside. 6.7) In support of his contention thatpresent case being a case of change ofopinion by the Assessing Officer, thereassessment proceedings deserves to bequashed and set aside, reliance was placed onthe decision of this Court in case of Gujarat Television (P) Ltd. v. Assistant Commissioner of Income tax, Circle 2(1)(2) reported in(2018) 94 taxmann.com 400 (Gujarat). 7.On the other hand, learned advocate Mr.Nikunt Raval for the respondent submittedthat an information was received from theDDIT(Inv), Unit 1(3), Ahmedabad that a searchand survey operation was carried out in thecase of Shri Shirish Chandrakant Shah andothers on 09.04.2013 and on perusal andanalysis of the documents and other evidencesfound and the statements of Shri ShirishChandrakant Shah and his key employees on the evidences seized/ impounded, it has been Television (P) Ltd. v. Assistant Commissioner of Income tax, Circle 2(1)(2) reported in(2018) 94 taxmann.com 400 (Gujarat). 7.On the other hand, learned advocate Mr.Nikunt Raval for the respondent submittedthat an information was received from theDDIT(Inv), Unit 1(3), Ahmedabad that a searchand survey operation was carried out in thecase of Shri Shirish Chandrakant Shah andothers on 09.04.2013 and on perusal andanalysis of the documents and other evidencesfound and the statements of Shri ShirishChandrakant Shah and his key employees on the evidences seized/ impounded, it has been found that Shri Shirish Chandrakant Shah ismanaging and controlling 212 companiesincluding 16 listed companies having officesspread across the country which are beingused so as to facilitate accommodationentries to clients against receipt of cashand the assessee company is its beneficiary. 7.1) It was submitted that the provision of Section 68 of the Act provides that whereany sum is found credited in the books of anassessee maintained for any previous year,and the assessee offers no explanation aboutthe nature and source thereof or theexplanation offered by him is not, in theopinionoftheAssessingOfficer, satisfactory, the sum so credited may becharged to income-tax as the income of theassessee of that previous year. It wassubmitted that in the case of the assesseecompany, the bank account of the assessee company is credited with Rs. 50,00,000/- andbooks of the assessee are audited whichclearly proves that books of the assessee wascredited with Rs. 50,00,000/- during the yearunder consideration from one of the bogusconcerns managed and controlled by ShriShirish Chandrakant Shah and therefore, thereis escapement of income in the hand of theassessee. 7.2) It was submitted that in case of theassessee, information was received in respectof accommodation entries of ShirishChandrakant Shah through the Addl. CIT videletter vide his letter dated 27.12.2017. Theassessment in the case of the assessee wascompleted under section 143(3) of the Act on18.01.2016 and information was received bythe Assessing Officer after completion ofassessment proceedings. Therefore, there istangible material in the possession of the Assessing Officer in the form of information received in the case of Shri Shirish Chandrakant Shah. 7.3) Learned advocate Mr. Raval submitted that information was received from theDIT(inv) Ahmedabad, in respect of search and survey carried out in the case of Shri Shirish Chandrakant Shah wherein the details of assessee was also forwarded as beneficiary ofaccommodationentries.Thesaid information was not before the Assessing Officer and the assessee also had not provided the details that it is beneficiaryof accommodation entry. The assessee alsohad in its submission dated 27.10.2015 neverprovided the bank account statement ofAccount no. 510011073726 held with KotakMahindra Bank during assessment proceedings.It was submitted that the assessee hasdeliberately not submitted the details of the bank account and only submitted a copy ofbank account statement of TAMILNADUMERCANTILE LTD. Therefore, there is afailure on the part of the assessee todisclose truly and fully all material factsnecessary for assessment. 7.4) It was submitted that due approval has been taken from the competent authoritiesand the competent authority duly verified thedetails/records and satisfied himself forissuance of notice under section 148 of theAct in the case of assessee and in the noticeitself it is mentioned that this notice isbeing issued after obtaining necessarysatisfaction of the Pr. CIT Surat,-1. receiving the information from the caserecord of the assessee and details receivedfrom DIT(inv) Ahmedabad and details collected bank account and only submitted a copy ofbank account statement of TAMILNADUMERCANTILE LTD. Therefore, there is afailure on the part of the assessee todisclose truly and fully all material factsnecessary for assessment. 7.4) It was submitted that due approval has been taken from the competent authoritiesand the competent authority duly verified thedetails/records and satisfied himself forissuance of notice under section 148 of theAct in the case of assessee and in the noticeitself it is mentioned that this notice isbeing issued after obtaining necessarysatisfaction of the Pr. CIT Surat,-1. receiving the information from the caserecord of the assessee and details receivedfrom DIT(inv) Ahmedabad and details collected from the bank, the Assessing Officer drew hissatisfaction and recorded reasons forreopening the case of the assessee and thereason recorded itself provides that theAssessing Officer has duly applied his mindwhile recording reasons in the case of theassessee. 7.6) In support of his submission that reassessment proceedings initiated on thebasisofinformationreceivedfrom investigation wing are upheld by this Court,reliance was placed on the followingdecisions: 1)M/s. Aradhana Estate Pvt. Ltd. v. CIT reported in (2018) 91 Taxmann.co 199(Gujarat). 2) Raymond Woolen Mills Ltd. vs. I.T.O.reported in 236 ITR 34 3) M/s Khatu Shyam Processors (P.) Ltd Vs Deputy Commissioner of Income Tax, Circle1(1)(2) reported in (2018) 94 taxmann.com 429(Gujarat). 4) Kottex Industries Private Limited v. Assistant Commissioner of Income tax reportedin 437 ITR 211 8.Having heard the learned advocates for therespective parties at length and on perusal of the reasons recorded by the AssessingOfficer, the impugned notice under section148 of the Act is issued by taking into consideration the information received fromDDIT(Inv.) Unit-I, Ahmedabad with regard tomodus operandi of providing accommodationentries by one Shirish Chandrakant Shah andothers against receipt of cash to more than212 companies including 16 listed companies having offices spread across the countrywherein the name of the petitioner companyalso appeared in the list of 212 companies.The Assessing Officer therefore, on the basisof information available on record, was ofthe opinion that there was accommodationentry of Rs. 50 lakhs taken by the petitioner company from M/s. Astro Media andEntertainment Private Limited managed andcontrolled by Shri Shirish Chandrakant Shahduring the year under consideration. 9.However, as it emerges from the facts onrecord that the petitioner has taken Rs.50lakhs only for one day i.e., on 18.03.2013and returned the same amount on 19.03.2013.Moreover, the assessment order under section143(3) of the Act was passed on 18.01.2016 by way of regular assessment after issuingnotice under section 143(2) and 142(1) of theAct along with detailed questionnaire calling for various details by the Assessing Officer.Therefore, merely because information withregard to search operations carried out inthe year 2013 was provided by theinvestigation department in the year 2019,the Assessing Officer cannot assume thejurisdiction to reopen the assessment aftermore than four years when there is no failureon part of the assessee to disclose fully andtruly all material facts during the course ofregular assessment. 10.From the details furnished by thepetitioner in response to the objectionsraised before the Assessing Officer inresponse to notice under section 148, thepetitioner has clearly stated that amount ofRs. 30 lakhs and Rs. 20 lakhs was received on18.03.2013 as advance and same was refundedon the next date i.e. on 19.03.2013 within 24hours. Therefore, only because the amount was 10.From the details furnished by thepetitioner in response to the objectionsraised before the Assessing Officer inresponse to notice under section 148, thepetitioner has clearly stated that amount ofRs. 30 lakhs and Rs. 20 lakhs was received on18.03.2013 as advance and same was refundedon the next date i.e. on 19.03.2013 within 24hours. Therefore, only because the amount was received fromM/s. Aristo Media andEntertainment Pvt. Ltd. which was controlledby Shri Shirish Chandrakant Shah, alleged tohave been a bogus company, it cannot bestated to be an accommodation entry thoughthere is no benefit availed by the petitionerout of such transaction. 11.In view of such facts, the impugned notice must fail because the AssessingOfficer has ignored the fact that advance received by the assessee was repaid within 24hours and there is nothing on record to showthat such amount was later on utilised forany other purpose. When the advances wererefunded on the next date, nothing remainedoutstanding in the books of the petitioner,more particularly, at the end of financialyear. The Assessing Officer during the courseof regular assessment has scrutinised all thedetails called for including the advances received and paid by the petitioner and assuch, there is no new tangible materialavailable on record which would permit theAssessing Officer to have a reason to believethat income has escaped assessment beyond theperiod of four years, more particularly, whenthe petitioner assessee has disclosed fullyand truly all the materials during the courseof regular assessment. The Assessing Officerhas issued the impugned notice merely on thebasis of the report received from DDIT,investigation in the year 2019 with regard to212 companies and on scrutiny of transactionof such companies, transaction of Rs. 50lakhs which was received by the assesseecompany as advance and refunded the same, hasalso come to the notice of the AssessingOfficer, and therefore, it is apparent thatthe Assessing Officer seems to have proceededcompletely on misapplication of the facts. 12.The contention of the learned advocatefor the respondent that this was a simplecase of accommodation entry in view of investigation report available on recordafter completion of the assessment, is notsustainable in view of the fact that even ifthe amount of Rs. 50 lakhs can be consideredas accommodation entry, the same was refundedon the next day. Such accommodation entrycould have been considered if the same wouldhave remained in the books of assessee at theend of financial year. 13.In view of foregoing reasons, theimpugned notice under section 148 of the Actto reopen the assessment for the AssessmentYear 2013-2014 is nothing but a mere changeof opinion and the Assessing Officertherefore, cannot assume the jurisdiction toissue such notice. The Hon’ble Supreme Courtin case of Commissioner of Income tax v. Kelvinator of India Ltd. reported in (2010)320 ITR 561(SC), has held that the words“reason to believe” would not give arbitrarypower to the Assessing Officer to reopen theassessment on the basis of “mere change ofopinion” which cannot be per-se reason toreopen the assessment. The Apex Court furtherobserved that the conceptual differencebetween the powers to review and powers toreassess has to be kept in mind and theAssessing Officer has no powers to review buthe has powers to reassess. Therefore, it washeld that the reassessment has to be based onfulfillment of certain pre-condition and ifthe concept of “change of opinion” is removedas contended on behalf of the department thenin garb of reopening the assessment, reviewwould take place and as such the concept of“change of opinion” has to be applied as aninbuilt test to check the abuse of power bythe Assessing Officer. 14.In view of the facts emerging from the 14.In view of the facts emerging from the record as well as the settled legal position,the impugned notice under section 148 of theAct is nothing but a mere change of opinionby the Assessing Officer resulting into review of assessment order leading to make aroving inquiry into the facts which were already considered by the Assessing Officerat the time of framing the regular assessment under section 143(3) of the Act. The Assessing Officer therefore, cannot be permitted to re-verify the facts for exercising the powers to reopen the assessment. The decisions relied upon by thelearned advocate for the respondents are, therefore, not applicable to the facts ofthis case, more particularly, when there isno new tangible material available on record which would lead to a reason to believe thatincome has escaped the assessment. 15.For the foregoing reasons, the impugnednotice dated 29.03.2019 issued under section148 of the Act by the respondent exercisingthe powers to reopen the assessment for theAssessment Year 2013-2014 is illegal andliable to be set aside. Accordingly, impugned notice dated 29.03.2019 is herebyset aside. 16.The petition succeeds and is allowed. Rule is made absolute to the aforesaid extent. No order as to costs. (N.V.ANJARIA, J) RAGHUNATH R NAIR (BHARGAV D. KARIA, J)