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Income Tax Appellate Tribunal, MUMBAI BENCH E, MUMBAI
Before: SHRI AMIT SHUKLA, HONBLE & SHRI ARUN KHODPIA, HONBLE
O R D E R PER ARUN KHODPIA, AM:
The captioned appeals filed by the assessee are directed against the separate orders of Commissioner of Income Tax, Appeals (In short “ld. CIT(A)”), National Faceless Appeal Centre, dated 27.03.2025 for A.Y. 2014-15 & 2015-16, which in turn arises from the order passed by the Assessing officer (in short “Ld. AO”), National Faceless Assessment Centre, u/s 147 r.w.s. 144B of the Income Tax Act (In short “The Act”) dated 30.03.2022, for both the aforesaid assessment years.
2 Both the aforesaid appeals pertain to the same assessee having similar facts, circumstances and legal grounds involved therein, therefore, the same are heard together and are being disposed of under this common order.
A.Y. 2014-15 has been taken up as the lead case wherein our observations, deliberations and adjudication shall apply mutatis mutandis to the other appeal i.e., for the A.Y. 2015-16.
At the outset, Shri Rajan Vora, Authorized Representative of the assessee (in short ‘ld. AR’) briefed the background of the case stating that the appellant-company is an Indian Multinational Automotive Manufacturing Company producing passenger cars, trucks, vans, coaches, buses, luxury cars, sports cars and construction equipment. For the year under consideration i.e., AY 2014-15, the appellant-company had filed its return of income on 28.11.2014 declaring loss of Rs. 5567.15 crores under the normal provisions of Income-tax Act and loss of Rs. 950.44 crores u/s 115JB of the Act. There after appellant revised its return on 30.03.2016 declaring loss of Rs. 5567.15 crores under the normal provisions of Income-tax Act and loss of Rs. 14.58 crores u/s 115JB of the Act. Subsequently, appellant’s case was selected for scrutiny under CASS vide notice u/s 143(2) of the Act dated 28.08.2015. The scrutiny proceedings came to be completed vide order u/s 143(3) r.w.s. 144C(3) of the Act dated 07.02.2018 determining assessed loss of Rs. 6401.24 crores under the normal provisions of the Act and loss of Rs. 233.21 crores u/s 115JB of the Act. Thereafter, an order u/s 154 of the Act was passed on 28.05.2018.
Afterwards, the case of assessee was reopened vide notice u/s 148 of the Act dated 30.03.2021, the reasons for reopening are summarized, as under:
& 3512/Mum/2025 Tata Motors Limited “i. Deduction of claim u/s 32AC of the Act of Rs. 14.64 crores with respect to assets to the extent of Rs. 97.57 crores which were not acquired during the prescribed period as alleged by the assessing officer. ii. Tax credit allowed u/s 115JAA of the Act of Rs. 163.23 crores against the income assessed u/s 115BBD of the Act should not be allowed and hence income has escaped assessment.”
In response to the impugned notice u/s 148, the assessee filed return of income and during the reopening proceedings have submitted requisite details and information as sought by the ld. AO. The reassessment proceedings were thereafter concluded vide the impugned order u/s 147 r.w.s. 144B of the Act dated 30.03.2022, whereby the ld. AO assessed the assessee’s loss at Rs. 4985.85 crores under the normal provisions, disallowed the claim for deduction u/s 32AC of the Act amounting to Rs. 14.64 crores, dropped the proposed adjustment pertaining to set-off of MAT credit against tax computed u/s 115BBD amounting to Rs. 163.23 crores and assessed the income at Rs. 233.21 crores u/s 115JB of the Act.
Aggrieved with the findings of the Ld AO in the aforesaid order u/s 147 r.w.s. 144B of the Act dated 30.03.2022, assessee preferred an appeal before the ld. CIT(A) / NFAC which was disposed of vide the impugned order u/s 250 of the Act dated 27.03.2025, thereby the appeal of assessee was dismissed. Consequently, the assessee preferred the captioned appeal which is under consideration before us.
While initiating the argument, the ld. AR assailed the legal issue challenging the validity of reopening assessment proceedings, initiated u/s 147 of the Act. To substantiate and to establish that reopening proceedings in the present matter are not in accordance with mandate of law, the ld. AR raised multiple contentions, reads as under: ii. The genesis of reopening was the same material available with the AO on assessment records and no new tangible material or fact brought on record. iii. The reopening was beyond a period of 4 years from the end of relevant assessment year without any failure on the part of assessee to disclose facts truly and fully as required for the assessment.”
While raising the aforesaid contention, the ld. AR furnished before us a written synopsis along with jurisprudence relied upon to support that aforesaid contentions. The written submission furnished before us is culled out hereunder, for the sake of interpretation and to check the applicability of case laws relied upon in the facts of present matter:
“Ground of Appeal Nos. 2 to 5: Invalidity of impugned proceedings under section 147 of the Act:
13. At the outset, the relevant extracts of the reasons for re-opening (enclosed at page nos. 304 to 306) are reproduced herewith for ready reference:
"The assesse filed return of income on 28.11.2014 declaring current year loss of Rs. 5567,14,72,712/- under the normal provisions of the Act and loss of Rs.9.50, 43,82, 744/- u/s 115JB of the Act. Subsequently, the assessee has filed revised e-return on 30.03 2016 declaring current year loss of Rs. 5567,14,72,712/- under the normal provisions of the Act and loss of Rs 1457.90.516/-u/s. 115JB of the Act. The case was selected for scrutiny and assessment for the AY 2014-15 was completed on 07.02.2018 with assessing loss of Rs. 640 1.23,62, 716/- under normal provisions of the Act and computed Income of Rs. 1375,84, 12,639/- u/s 115BBD of the Act and determined book profit of Rs. 233, 2 1,08,838/- u/s 115JB of the Act. The tax was levied on Rs. 1375,84,12,639/- u/s 115BBD of the Act.
Subsequently on perusal of the records it was observed from the assesses computation of total income that the assesse claimed deduction of Rs. 102.08 crore u/s 32AC of the Act and the same was allowed. Further, it was observed that the assesse claimed deduction on addition of assets of Rs.39. 49 crore out of opening CWIP and Rs. 58. 08 crore on account of capitalization of Interest expenses prior to put to use.
The Act provides for deduction an investment exceeding 100 crore in new assets and installed during the prescribed period only. In the instant case the assets to the extent of Rs. 97. 57 crore was not acquired during the prescribed period. As both the essential limb that the new assets must be acquired as well as kept ready to use in the same previous year was not fulfilled, the deduction cannot be allowed. In view of the provisions stated above the deduction allowed to the extent of Rs. 14,63,61,412/- on asset of Rs. 97,57, 42, 747/- was not in order. This resulted in under assessment of Rs. 14,63,61,412/- 2.1 Therefore I am of the view that income to the extent of amount of Rs. 14,63,61,412/-, as explained above, has escaped assessment.
In view of the above the undersigned has reason to believe that the income exceeding Rs. 1,00,000/- has escaped assessment within the meaning of Section 147 of the Act. Therefore proposal for reopening of AY 2014-15 by issuing notice u/s 148 of the Act is being made u/s 151 of the Act for your kind perusal and approval.
4. In view of the reasons recorded above, I am of the opinion that income chargeable to tax has escaped assessment for A.Y. 2014-15 by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for AY 2014-15."
A. Reopening of assessment for the captioned AY, basis a mere change in opinion is not permissible and hence reopening is invalid and bad in law.
14. In this regard, the Appellant wishes to submit that deduction claimed by it under section 32AC has been properly disclosed in the computation of income (enclosed at page nos. 111 to 124 of the factual paperbook) as well as Tax Audit Report (enclosed at page nos. 178 to 183 of the factual paperbook).
15. Further, during the course of the assessment proceedings, the Appellant has submitted the working of investment in new plant & machinery eligible for deduction under section 32AC of the Act duly certified by the tax auditor vide its submission dated 21 November 2017 (enclosed at page nos. 194 to 198 of the factual paperbook). Vide submission dated 28 November 2017 (enclosed at page nos. 199 to 285 of the factual paperbook) and in response to point no. 7 of order sheet entry dated 20 October 2017, the appellant submitted details of additions made under the block Plant and Machinery along with sample copies of asset capitalization documents.
Subsequently, in response to point no. 3 of order sheet entry dated 28 November 2017, the Appellant vide its submission dated 12 December 2017 (enclosed at page nos. 286 to 293 of the factual paperbook) made detailed submission on allowability of deduction under section 32AC of the Act and as to how assets forming part of CWIP up to 31 March 2013 as well as interest and other charges capitalized should be allowed under section 32AC of the Act.
17. Considering the afore-mentioned decisions, the then learned assessing officer did not make any disallowance under section 32AC of the Act in the order under section 143(3) read with section 144C of the Act dated 7 February 2018 (enclosed at page nos. 126 to 166 of the factual paperbook).
In view of the above, the Appellant wishes to submit that all the facts/ information/documents were already provided to the learned assessing officer during the assessment proceedings under section 143(3) of the Act. Further, the issue has been duly analysed and discussed during the course of assessment and after perusing the submissions of the assessee as mentioned above, view was taken on the aforementioned issues and accordingly no addition was made Therefore, re-assessment is initiated on account of change of opinion' which is bad in law.
Reliance is placed on the following decisions wherein it has been held that reopening on the basis of change in opinion is invalid and bad in law: • Kelvinator India Limited [(320 ITR 561) (SC)] (enclosed at page nos. 394 to 396 of the legal paperbook) • Cognizant Technology Solutions India Private Limited (SLP(C) No. 92/ 2023 dated 3 January 2023 (SC)] • Lehman Brothers Investments Pte. Ltd. ((2023) 454 ITR 331 dated 8 March 2023 (Bombay HC)] (enclosed at page nos. 397 to 406 of the legal paperbook):
We have heard the learned counsel at length. We are of the view that it is as clear-cut case of change of opinion inasmuch as there is no new material which is discovered by the concerned officer. The application of another section of the IT Act on the facts and circumstances of a case would only constitute a change of opinion and can by no stretch of imagination be construed as new material by the Revenue. The entire emphasis on the petitioner not truly and fully disclosing facts is baseless inasmuch as in the present case, there is only one transaction which was under consideration for the respondents. The entire transaction has been considered by the Assessing Officer and has culminated into the order under section 143(3) of the income- tax Act dated 24th December 2018. As apparent from the reasons there were no new tangible material in the hands of the Assessing Officer. Once the assessment is concluded, it is deemed to have been concluded with application of mind by the Assessing Officer from all perspectives legal and factual. In this regard it would be fruitful to rely upon the Full Bench decision of the Delhi High Court in the case of CIT v. Kelvinator of India Ltd [2002] 123 Taxman 433/256 ITR 1 of India Ltd 16 which held that:
………………………………………… The reopening of the assessment based on a different method of computation or application of the section is nothing else but a change of opinion which is impermissible in law. A similar situation was dealt with in the case of Jindal Photo Films Ltd. (supra) where the Court, in the background of section 147 of the Act, observed:
“……………….. all that the Income-tax Officer has said is that he was not right in allowing deduction under section 801 because he had allowed the deductions wrongly and. therefore, he was of the opinion that the income had escaped assessment. Though he has used the phrase "reason to believe" in his order, admittedly, between the date of the orders of assessment sought to be reopened and the date of forming of opinion by the Income-tax Officer nothing new has happened. There is no change of law. No new material has come on record. No information has been received. It is merely a fresh application of mind by the same Assessing Officer to the same set of facts. While passing the original orders of assessment the order dated February 28, 1994, passed by the Commissioner of income-tax (Appeals) was before the Assessing Officer. That order stands till today. What the Assessing Office has said about the order of the Commissioner of income-tax (Appeals) while recording reasons under section 147 he could have said even in the original orders of assessment. Thus, it is a case of mere change of opinion which does not provide jurisdiction to the Assessing Officer to initiate proceedings under section 147 of the Act.
It is also equally well settled that if a notice under section 148 has been issued without the jurisdictional foundation under section 147 being available to the Assessing Officer, the notice and the subsequent proceedings will be without jurisdiction, liable to be struck down in exercise of writ jurisdiction of this court. If "reason to believe" be available, the writ court will not exercise its power of judicial review to go into the sufficiency or adequacy of the material available. However, the present one is not a case of testing the sufficiency of material available. It is a case of absence of material and hence the absence of jurisdiction in the Assessing Officer to initiate the proceedings under section 147/148 of the Act."
27. In our view, the defense is misdirected and misconstrued and unsubstantiated. In our view, appropriate application of the law and correct advice to the concerned officer can save a lot of litigation and burden on the court as well as agony to the citizens. The case law referred by the respondents also is totally meaningless and out of context and by no stretch of imagination applicable to the facts of this case and therefore, we do not propose to deal with each one of them. Suffice it to say that, it is misconstrued and misapplied, on the other hand, the judgments relied upon by the petitioner are relevant and support the contentions' so raised by the petitioner.
& 3512/Mum/2025 Tata Motors Limited • Department's SLP has been dismissed by the Hon'ble SC in 461 ITR 360 dated 11 December 2023 (enclosed at page nos. 407 to 408 of the legal paperbook). • Emkay Global Financial Services Ltd. [(2024) 465 ITR 763 dated 6 February 2024 (Bombay HC)] (enclosed at page nos. 409 to 413 of the legal paperbook) Department's SLP dismissed by SC in 482 ITR 286 dated 10 February 2025 (enclosed at page nos. 414 to 415 of the legal paperbook). • State Bank of India ((2019) 418 ITR 485 dated 17 January 2019 (Bombay HC)] (enclosed at page nos. 416 to 423 of the legal paperbook) Department's SLP dismissed by SC in 447 ITR 368 dated 4 August 2022 (enclosed at page nos. 424 to 425 of the legal paperbook) • Bharat Petroleum Corporation Ltd [(2025) 176 taxmann.com 103 dated 3 July 2025 (Bombay HC)] (enclosed at page nos. 426 to 443 of the legal paperbook) • Tata Sons Ltd. ((2022) 443 ITR 282 (Bombay HC) dated 03 February 2022] (enclosed at page nos. 444 to 449 of the legal paperbook): • Tata Sons Ltd. [(2022) 286 Taxman 587 dated 3 February 2022 (Bombay HC)] (enclosed at page nos. 450 to 453 of the legal paperbook) • Ananta Landmark (P.) Ltd. [(2021) 439 ITR 168 dated 14 September 2021 (Bombay HC)] (enclosed at page nos. 454 to 466 of the legal paperbook) • Gujarat Natural Resources [(2023) 148 taxmann.com 476 (dated 11 November 2022 (Gujarat HC)] (enclosed at page nos. 467 to 474 of the legal paperbook) • TMF Holdings Limited [ITA No. 2983/Mum./2025 dated 18 July 2025 (Mumbai ITAT)] (enclosed at page nos. 475 to 505 of the legal paperbook) • Small Industries Development Bank of India [ITA No. 2892/Mum./2023 dated 30 September 2024 (Mumbai ITAT)] (enclosed at page nos. 506 to 531 of the legal paperbook) • Small Industries Development Bank of India [ITA No. 1809/Mum./2023 dated 26 February 2024 (Mumbai ITAT)] (enclosed at page nos. 532 to 548 of the legal paperbook)
Accordingly, it can be appreciated that the impugned proceeding have been initiated based on mere 'change in opinion' even though it had disclosed all the information clearly Prayer
21. In view of the above, the Appellant respectfully prays that the impugned proceedings under section 147 of the Act be quashed since they have been initiated on a mere change of opinion.
B. Reopening of proceedings without any new tangible material/ fact is invalid and bad in law,
22. The Appellant humbly submits that on perusal of towards paragraph no 2 of the recorded reasons reproduced above (enclosed at page nos. 304 to 306 of the factual paperbook), it can be appreciated that there is no mention of any new tangible material/ fact basis which the impugned proceedings have been initiated. No new fact/material/ information has come to the notice of the learned assessing officer since all fact/ material/ information has been disclosed by the Appellant in its return of income and subsequently, during the course of the assessment proceedings
23. Further, the recorded reasons begin and mention that "Subsequently on perusal of the records it was observed.... which clearly indicates that the learned assessing officer agrees that Appellant has made all relevant disclosures and the reopening is proposed to be initiated based on the material already available on record.
It is humbly submitted that it is a well settled judicial principle that the true test of income chargeable to tax escaping assessment is whether there exists fresh "tangible material" on whose basis an appropriate conclusion can be reached. In the absence of such fresh material, the reassessment proceedings would be invalid. Further, the word 'tangible' has been used before material, which means not all and every information can lead to reopening of assessment but it has to be a tangible material, which is so relevant that it leads to information by which the assessing officer can satisfy that there is income which has escaped assessment
Reliance in this regard is placed on the following decisions: • Coca-Cola Export Corporation [(1990) 231 ITR 200 (SC)] wherein it held that "there should be some fresh information and not mere reappraisal of evidence on record to justify jurisdiction for re-assessment • Kelvinator India Limited [(320 ITR 561) (SC)] (enclosed at page nos. 394 to 396 of the legal paperbook) • TechSpan India Pvt Ltd [Civil Appeal No. 2732/ 2007 dated 24 April 2018 (SC)) • New Delhi Television Ltd. [(2020) 424 ITR 607 dated 3 April 2020 (SC)] (enclosed at page nos. 549 to 564 of the legal paperbook):
"33. In our view the assessee disclosed all the primary facts necessary for assessment of its case to the assessing officer. What the revenue urges is that the assessee did not make a full and true disclosure of certain other facts. We are of the view that the assessee had disclosed all primary facts before the assessing officer and it was not required to give any further assistance to the assessing officer by disclosure of other facts. It was for the assessing officer at this stage to decide what inference should be drawn from the facts of the case. In the present case the assessing officer on the basis the facts disclosed to him did not doubt the genuineness of the transaction set up by the assessee. This the assessing officer could have done even at that stage on the basis of the facts which he already knew. The other facts relied upon by the revenue are the proceedings before the DRP and facts subsequent to the assessment order, and we have already dealt with the same while deciding Issue No.
However, that cannot lead to the conclusion that there is non-disclosure of true and material facts by the assessee 35. Even otherwise we find that the assessee had fully and truly disclosed all material facts necessary for its assessment and, therefore, the revenue cannot take benefit of the extended period of limitation of 6 years. We answer Question No. 2 accordingly" (Emphasis supplied) • Emkay Global Financial Services Ltd. [(2024) 465 ITR 763 dated 6 February 2024 (Bombay HC)] (enclosed at page nos. 409 to 413 of the legal paperbook):
"9. Moreover, as held by the Apex Court in Calcutta Discount Co. Ltd. v. ΙΤΟ [1961] 41 ITR 191 (SC), the duty of assessee does not extend beyond the full and truthful disclosure of all primary facts. Once all the primary facts are before him, he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. If from primary facts, more inferences than one could be drawn, it would not be possible to say that the assessee should have drawn any particular inference and communicated it to the assessing authority. The Court held. Explanation to the sub-section has nothing to do with "inferences" and deals only with the question whether primary material facts not disclosed could still be said to be constructively disclosed on the ground that with due diligence the Income-tax Officer could have discovered them from the facts actually disclosed. The Explanation has not the effect of enlarging the section, by casting a duty on the assessee to disclose "inferences" to draw the proper inferences being the duty imposed on the Income-tax Officer. The Court held that the duty of the assessee is to disclose fully and truly all primary relevant facts and it does extend beyond that." • Department's SLP dismissed by Hon'ble SC in 482 ITR 286 dated 10 February 2025 (SC) (enclosed at page nos. 414 to 415 of the legal paperbook).
& 3512/Mum/2025 Tata Motors Limited • Imperial Consultants and Securities Ltd. [(2025) 303 Taxman 263 dated 20 December 2024 (Bombay HC)] (enclosed at page nos. 571 to 587 of the legal paperbook):
44. Adverting to the principles of law as the aforesaid decisions lay down to the facts of the present case, we may observe that the Assessing Officer in issuing the impugned notice under Section 148 of the IT At has clearly acted without jurisdiction. This firstly for the reason that the Assessing Officer was reopening an assessment beyond the period of four years and in such context the first proviso to Section 147 was strictly applicable inter alia to the effect that when the petitioner/assessee had not defaulted in fully and truly disclosing all material facts necessary for his assessment for the assessment year in question, the Assessing Officer would not have jurisdiction to reopen the concluded assessment. Secondly, the reasons as furnished to the petitioner, in no manner whatsoever make out a case on the failure on the part of the petitioner to fully and truly disclose all the materials. This apart, the reasons demonstrate that the entire basis for such reopening is on the materials which was already available with the Assessing Officer, in finalizing the petitioner's assessment under Section 143(3) of the IT Act. If this be so, the assessing officer was acting on a complete change of opinion on the same material and/or intending to have a review of the assessment order passed by him. This was certainly not permissible applying the settled principles of law as discussed by us hereinabove. Thus, on both the counts namely on failure of the assessing officer in adhering to the mandate as contained in the first proviso to section 147, and on exceeding his jurisdiction as conferred by the said provision by forming an opinion on the same material which was available with him in the course of assessment proceedings was wholly an impermissible exercise of jurisdiction, to issue the impugned notice. This writ large from the plain reading of the reasons for reopening as furnished to the petitioner. We have already observed that there was substantive correspondence between the petitioner and the assessing officer on all materials and subject matter of reopening and all such materials had formed part of the disclosure by the petitioner. It was, hence, clearly not permissible for the assessing officer to reopen the assessment on the very material on which the assessment order was passed. The law does not permit such course of action and if permitted, it would not only fall foul of the mandate of the first proviso below Section 147 but also it would amount to manifest arbitrariness and illegality resulting in drastic and unwarranted consequences being brought about to unsettle settled/concluded assessments, which the law would certainly not recognize • 45. Now coming to Mr. Suresh Kumar's contentions, we do not find ourselves in agreement with Mr. Suresh Kumar relying on Explanation 1 below Section 147. We fail to understand as to how Explanation 1 would in any manner dilute and/or dispense with the rigors of the specific compliance of the first proviso, when the assessment is being reopened after a period of four years. Explanation 1 merely explains that production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the preceding proviso. We may observe that this is certainly not a case where on the materials which are already produced before the Assessing Officer, the Assessing Officer has gathered or discovered further material evidence so as to construe that there was failure on the part of the assessee to make a disclosure of such materials. Moreover, there is no further tangible material which has been gathered on due diligence from the existing material and hence it is quite futile for the respondents to take recourse to this provision." • Tata Sons Ltd. ((2022) 443 ITR 282 (Bombay HC) dated 03 February 2022] (enclosed at page nos. 444 to 449 of the legal paperbook): • Tata Sons Ltd. [(2022) 286 Taxman 587 dated 3 February 2022 (Bombay HC)] (enclosed at page nos. 450 to 453 of the legal paperbook) • TMF Holdings Limited [ITA No. 2983/Mum/2025 dated 18 July 2025 (Mumbai ITAT)] (enclosed at page nos. 475 to 505 of the legal paperbook)
26. Further, it is humbly submitted that where an assessing officer had issued reopening notice under section 148 of the Act on grounds that assessee was allowed excessive deductions, since the learned assessing officer was acting solely on basis of information and material already on record of original assessment impugned notice issued beyond period of four years was unjustified.
Reliance in this regard is placed on the decision of the Hon'ble Bombay HC in case of Marico Ltd. [WP No. 3353/2018 dated 21 December 2018 (Bombay HC)] (enclosed at page nos. 565 to 570 of the legal paperbook) wherein the proceedings (initiated beyond end of four years) were quashed as assessing officer has initiated proceedings under section 147 of the Act on grounds that assessee was allowed excessive deductions acting solely on basis of information and material already on record of original assessment proceedings The Department's SLP has been dismissed by the Hon'ble SC in 284 Taxman 365 (enclosed at page no. 565 of the legal paperbook).
28. Accordingly, it can be appreciated that re-opening of proceedings without any new tangible material/ fact is invalid and bad in law.
Prayer
In view of the above, the Appellant respectfully prays that the impugned proceedings under section 147 of the Act be quashed since they have been initiated without any tangible material/fact
Without prejudice to the above, we humbly submit that on perusal of the recorded reasons it is clear that there is no tangible material available with the learned assessing officer for initiation of reassessment proceedings since there is no mention of what additional information the learned assessing officer has received and how that information is relevant for initiation of reassessment proceedings, as material relied by the learned assessing officer was already available on the records. Therefore, there is no live linkage of material (if at all any) with the impugned transaction on which the learned assessing officer has sought to reopen the assessment and hence reopening proceedings initiated should be quashed.
It is our respectful submission that the validity of the reopening needs to be satisfied on the basis of reasons recorded. Once the assessing officer has not given any reference of what additional material he has received and how that material is relevant for addition of income under income escaping assessment (e. live linkage), entire re-assessment proceedings is bad in law
Reliance in this regard is placed on the following decisions • Lakhmani Mewal Das (103 ITR 437 (SC)] • Shodiman Investments Pvt Ltd [ITA No. 1297 of 2015 dated 16 April 2018 (Bombay HC)] Harish Gangji Dedhiya ((2022) 443 ITR 273 (Bombay HC) dated 29 March 2022 C. Reassessment proceedings without any failure on part of the Appellant to disclose facts fully and truly are bad in law and ought to be quashed.
The Appellant humbly submits that from the reasons recorded it cannot be established that what information/details were not submitted by the Appellant warranting initiation of the proceedings beyond a period of 4 years.
It is submitted that there is no live link of documents which the assessee has failed to disclose or has not been submitted by the Appellant and neither the same has been pointed out by the learned assessing officer as to which document the Appellant has failed to produce/disclose.
In this regard, the Appellant wishes to humbly highlight that the deduction claimed under section 32AC of the Act was disclosed in the computation of income as well as the Tax Audit Report at clause 19(a). Further, the issue was also examined during the course of the original assessment proceedings. Therefore, all the necessary information has already been disclosed by the Appellant.
From the reasons recorded by the learned assessing officer, relevant extracts reproduced above, it is crystal clear that there is no mention of any failure on account of the Appellant with regard to disclosure of any document/information (enclosed at page nos. 304 to 306 of the factual paperbook).
From the reasons recorded it cannot be established that what information/details were not submitted by the Appellant.
It is submitted that there is no live link of documents which the assessee has failed to disclose or has not been submitted by the Appellant and neither the same has been pointed out by the learned assessing officer as to which document the Appellant has failed to produce/disclose Reliance in this regard is placed on the following decision wherein it was held that assessment cannot be reopened based on data already disclosed in scrutiny assessment without establishing the live linkage/ nexus with income escaping assessment: • New Delhi Television Ltd. ((2020) 424 ITR 607 dated 3 April 2020 (SC)) (enclosed at page nos. 549 to 564 of the legal paperbook) • Asian Paints Limited [(2023) 451 ITR 45 9 January 2023 (Bombay HC)] (enclosed at page nos. 596 to 605 of the legal paperbook):
"9. In Hindustan Lever Ltd. v. R.B. Wadkar, Asstt. CIT [2004] 137 Taxman 479/268 ITR 332/190 CTR 166 (Bom), this Court held:
……………………………
From the record, it is clear that during the scrutiny assessment, the AO had sought from the petitioner the relevant details with regard to the advertisement and sales promotion expenses which details were furnished by the petitioner vide its response dated 17th October 2016. It can also be seen that the AO had disallowed some of the expenses which had been reflected in the break-up under the head "details of advertisement and sales promotion expenses while passing the final order of assessment, which reflects that the AO had applied its mind to the appellant's claim while passing the order under section 143(3) of the Act. Moreover, the reasons do not disclose as to what material or fact was not disclosed by the assessee it, therefore, clear that there was, in fact, a complete disclosure of all the primary material facts on the part of the petitioner and it cannot be said that there was any failure on the part of the petitioner to disclose fully and truly facts which were material and necessary for assessment." • Department's SLP has been dismissed by the Hon'ble SC in 296 Taxman 74 dated 9 October 2023 (enclosed at page nos. 592 to 593 of the legal paperbook). • L&T Ltd. [113 taxmann.com 47 (Bombay HC)] (enclosed at page nos. 594 to 595 of the legal paperbook) - Department's SLP has been dismissed by the Hon'ble SC in 113 taxmann.com 47 dated 22 November 2019 (enclosed at page no. 594 of the legal paperbook)
24. It would also be profitable to refer to the decision of Central Warehousing Corpn. (supra) and CIT v. Kelvinator of India Ltd. [2002] 123 Taxman 433/256 ITR 1 (Delhi) and CIT v. Usha International Ltd. [2012] 25 taxmann.com 200/210 Taxman 188/348 ITR 485 (Delhi) and several other decisions wherein it has been repeatedly held that reopening initiated without any failure on the part of the Assessee in fully and truly disclosing all material facts without any fresh tangible material deserves to be quashed. In view of the aforesaid test laid down by this Court for re-opening of the assessment in cases where proviso to section 147 of the Act is attracted, we find that in the present case, the test is not met. It is well settled proposition under the Income Tax Act that merely a change of opinion would not give the AO the jurisdiction to reopen the assessment under section 147/148, as the same would amount to reviewing the earlier decision. There has to be some relevant tangible material for the AO to come to the conclusion that there is escapement of income from assessment, and there must be a live link with such material for the formation of the belief. The reasons should also disclose due application of mind as reopening of the assessment proceeding is not an empty formality. On a perusal of the recorded reasons, we are not able to discern as to how the AO has come to a conclusion that there is a failure on the part of the Assessee in fully and truly disclosing all material facts for the purpose of the assessment. Though, the recorded reasons allude to an ostensible failure on the part of the Assessee to disclose fully and truly all material facts, however, the recorded reasons except for using the expression failure on the part of the Assessee to disclose fully and truly all material facts", do not specify as to what is the nature of default or failure on the part of the Assessee. The reasons also do not explain or specify as to what is the rationale connection between the reasons to believe and the material on record. The Supreme Court in ITO v. Techspan India (P) Ltd. [2018] 6 SCC 685 has held that "The use of the words "reason to believe in section 147 has to be interpreted schematically as the liberal interpretation of the word would have the consequence of conferring arbitrary powers on the assessing officer who may even initiate such re- assessment proceedings merely on his change of opinion on the basis of some facts and circumstances which has already been considered by him during the original assessment proceedings. Such could not be the intention of the legislature. The said judgment further held that "section 147 of the IT Act does not allow the reassessment of an income merely because of the fact that the assessing officer has a change of opinion with regard to the interpretation of law differently on the facts that were well within his knowledge even at the time of assessment. Doing so would have the effect of giving the assessing officer the power of review and section 147 confers the power to reassess and not the power to review.”
& 3512/Mum/2025 Tata Motors Limited • Department’s SLP has been dismissed by the Hon’ble SC in 277 Taxman 198 dated 4 January 2021 (enclosed at page nos. 606 to 607 of the legal paperbook). • Gateway Leasing (P.) Ltd. ((2020) 426 ITR 228 dated 11 March 2020 (Bombay HC)] (enclosed at page nos. 608 to 616 of the legal paperbook) • GlaxoSmithKline Pharmaceuticals Ltd [(2025) 304 Taxman 350 dated 10 March 2025 (Bombay HC)] (enclosed at page nos. 617 to 624 of the legal paperbook) • Bharat Petroleum Corporation Ltd [(2025) 176 taxmann.com 103 dated 3 July 2025 (Bombay HC)] (enclosed at page nos. 426 to 443 of the legal paperbook) • Raheja Universal Private Limited [ITA No. 4847/Mum./2023 dated 26 August 2024 (Mumbai ITAT)] (enclosed at page nos. 625 to 638 of the legal paperbook) • Plaza Cable Industries Limited [ITA No. 1485/Del./2014 dated 2 June 2022 (Delhi ITAT)] (enclosed at page nos. 639 to 647 of the legal paperbook)
Accordingly, it can be appreciated that re-opening of proceedings without the appellant’s failure to disclose fully and truly all the necessary facts is invalid and bad in law.
Prayer:
In view of the above, the appellant respectfully prays that the impugned proceedings under section 147 of the Act is quashed.” 10. In the backdrop of aforesaid submission, the ld. AR drew our attention to various documents placed before us in the paper book, consisting of copies of reason to believe dated 16.03.2021, notice issued u/s 148 of the Act dated 30.03.2021, Tax Audit report in Form 3CD, details of assessee’s claim regarding investment in new plant and machinery u/s 32AC of the Act, notice u/s 142(1) of the Act dated 16.08.2017 seeking information from the assessee, response of the assessee dated 13.11.2017, 21.11.2017 comprising the details of investment in new plant & machinery eligible for deduction u/s 32AC along with tax audit report, particulars of & 3512/Mum/2025 Tata Motors Limited investment in new plant & machinery, details of plant & machinery capitalized during the year of Rs. 787.66 crores and summary of invoices on sample basis for additions to plant & machinery aggregating to Rs. 1,30,95,90,487/-. Copies of instalment certificates are also furnished before us, as furnished before revenue authorities too (paper book page 202 to 285). Ld. AR also drew our attention to the submissions dated 12.12.2017, before the Ld. AO, elaborating the facts and provisions of law to establish the genuineness of assessee’s claim qua the allowability of deduction u/s 32AC.
It was the submission by ld. AR that after such a lengthy enquiry / deliberation by the ld. AO on the issue, to which the assessee has furnished all the relevant information from time to time, then only Ld A.O. accepted the contention of the assessee and have decided to not offer any adverse comment in the assessment order regarding the admissibility of assessee’s claim towards section 32AC of the Act.
Based on aforesaid submissions, the ld. AR argued further that the material, which was relied upon by the Ld AO to form the belief for recording the reasons, was very much on the assessment records, wherein at the initiation itself, the ld. AO has mentioned that “on perusal of the record, it was observed……….” and thereafter reiterated the facts which were there on the assessment records. Ld AR submitted that, once a plausible view has been adopted by the AO and the assessee of claim u/s 32AC was allowed, based on material and facts on record, reopening of assessment of income escaping on the basis of same facts and material on record, is nothing but merely a ‘change of opinion’ which is not permissible
The ld. AR, further, placed his reliance on the decision of co- ordinate bench of ITAT Mumbai Bench “K” in the case of Larsen & Toubro Infotech Ltd. reported in (2023) 157 taxmann.com 812 (Mumbai – Trib.) wherein the Tribunal after discussing various judgments has held that, merely because a different view had been taken by assessing officer in the assessment on same set of facts, that did not lead to inference that there was failure on part of assessee to disclose relevant fact during the year.
The ld. AR also placed his reliance on the decision of ITAT Mumbai Bench “C” in the case of DCIT vs Red Chillies Entertainment (P) Ltd. reported in (2025) 172 taxmann.com 341 (Mumbai – Trib.) wherein it is held that if the assessing officer was not in possession of any information or tangible material that would enable him to form reason to believe that income has escaped assessment, warranting reopening of case, the impugned assessment notice issued was to be quashed.
The ld. AR further placed his reliance on the decision of ITAT Raipur Bench in the case of ITO vs Parmanand Gupta reported in (2023) 156 taxmann.com 551 (Raipur – Trib.) pointing out the decision that, if the relevant details are very much there before assessing officer in the course of original assessment proceedings and were accepted as duly accounted for, in such case reopening of assessment beyond a period of 4 years merely on the basis of certain information received would be a change of opinion and liable to be quashed.
& 3512/Mum/2025 Tata Motors Limited 16. On the issue, the ld. AR further referred to the decision of ITAT Raipur Bench in the case of ITO vs Bishambhar Dayal Agrawal reported in (2024) 161 taxmann.com 1063 (Raipur – Trib.).
Apropos, no observation by the ld. AO in the assessment order regarding the assessee’s claim qua investment in plant and machinery u/s 32AC of the Act, the ld. AR placed his reliance on the judgment of Hon’ble Supreme Court of India in the case of PCIT-1 vs V-Con Integrated Solutions (P) Ltd. reported in (2025) 173 taxmann.com 774 (SC), wherein Hon’ble Supreme Court has clearly laid down that:
The assessee does not have control over the PEN of the assessing officer. Once the assessing officer carries out the investigation but does not make any addition, it can be taken that he accepts the plea and stand of the assessee
18. In closing remarks, the ld. AR submitted that, as the assessee during assessment proceedings have furnished all the necessary information which were sought by the AO at different stages of the assessment and specific query qua the assessee’s claim u/s 32AC was also satisfactory complied with, therefore, the reopening in present case to deny the same claim, would constitute merely a change of opinion based on material and facts on record without any new tangible material on facts brought on record. Further, the ld. AO have not brought on record any failure on the part of assessee to disclose fully and truly all material facts necessary for the assessment, which is necessary for reopening beyond a period of 4 years after the expiry of assessment year. The ld. AO merely mentioned that the assessee failed to furnish necessary details but no specific description of such failure has been recorded in the & 3512/Mum/2025 Tata Motors Limited reasons to believe. In view of such submissions, it was the prayer by ld. AR that the initiation of reopening assessment and the notices issued u/s 148 itself was bad in law, being not in conformity of the provisions of the Act and, therefore, the entire proceedings of reopening thereafter vitiate and does not have any legal standing in the eyes of law. Consequently, the notice issued u/s 148 which does not satisfy the conditions stipulated by the Act and also as per the settled principle of law under the jurisprudence accorded by Hon’ble courts (supra), the assessment framed u/s 147 r.w.s. 144B of the Act dated 30.03.2022, therefore, ought to have been quashed.
19. Per contra, the ld. CIT – DR, Shri Ritesh Misra representing the revenue vehemently supported and relied on the order of ld. CIT(A). The ld. CIT – DR drew our attention to para 5.3.10 to 5.3.19 of ld. CIT(A), wherein the ld. CIT(A) opined that the word reassessment is not confined to a fresh assessment being made on an income in the hands of same person but is wide enough to include a fresh assessment on an income in hands different from those in which it has been assessed originally. The ld. AO had rightly initiated the proceedings under section 148 based on tangible material indicating income chargeable to tax at escaped assessment.
20. It is submitted that, the ld. CIT(A) was of the firm conviction that the ld. AO has specifically mentioned the reasons before making disallowance/addition to the income of appellant as he was satisfied that necessary limbs for claiming deduction u/s 32AC are not complied with, in absence of which the addition of disallowance were made by the AO. Ld CIT-DR further averred that there was no fault in the process of reopening, the same was validly done by the Ld AO and rightly approved by the ld. CIT(A) by dismissing the relevant grounds of the appellant. Ld CIT-DR placed his reliance on the judgments referred by the Ld CIT(A)/NFAC.
In rebuttal, the ld. AR of the assessee submitted a note against the decision relied upon by the ld. CIT(A), while dismissing the grounds of appeal the assessee. The same is extracted herein below:
Sr. Decisions CIT(A)’s Basis Rebuttal No. 1 Rajesh Shaveri Stock The word "reason" in Proceedings cannot be based on Brokers (P) Ltd ((2007) the phrase "reason to mere change of opinion. 291 ITR 500 (SC) believe would mean 2 Praful Chunilal Patel cause or justification In the following cases, The expression cannot proceedings under section 148 of (1999) 236 ITR 632 be read to mean that the Act have been quashed after (Gujarat HC) 3 Navnidhi Dyeing and the assessing officer referring the decisions in case of should have finally Rajesh Jhaveri Stock Brokers (P) Printing Mills P. Ltd (2021) ascertained the fact Ltd ((2007) 291 ITR 500 (SC)). 434 ITR 334 (Gujarat HC) by legal evidence or Praful Chunilal Patel (1999) 236 4 Murrah Livestock Agency conclusion At the ITR 832 (Gujarat HC)), Raymond (2004) 91 ITD 198 (Patna initiation stage. the Woollen Mills Ltd. (1999) 236 ITR ITAT assessing officer is 34 (SC)) and Murrah Livestock 5 Raymond Woollen Mils only required to show Agency (2004) 91 ITD 198 (Patna Ltd. (1999) 236 ITR 34 reasonable belief that ITAT)) (SC)] income has escaped 6 Anant Kumar Saharia • assessment and the State Bank of India ((2019) (1998) 232 ITR 533 assessing officer is 418 ITR 485 dated 17 (Gauhati HC) not required to January 2019 (Bombay 7 Vasudev Fatandas establish the same HC)] (enclosed at page nos. Vaswani [Special Civil beyond reasonable 416 to 423 of the legal Application No. 15577/ doubt. paperbook) Department's 2018 dated 9 October SL.P dismissed by SC in 2018 (Gujarat HC)] 447 ITR 368 dated 4 August 2022 (enclosed at page nos. 424 to 425 of the legal paperbook) • HDFC Bank Ltd. ((2024) 162 taxmann.com 390 dated 17 April 2024 (Bombay HC) • TMF Holdings Limited [ITA No. 2983/Mum./2025 dated 18 July 2025 (Mumbai ITAT)] (enclosed at page. nos. 475 to 505 of the legal paperbook)
• Project India [(2007) 110 TTJ 142 dated 31 August 2006 (Indore ITAT) 8 Phool Chand Bajrang Lal The belief that certain Distinguished by the Hon'ble [(1993) 203 ITR 456 (SC)) income escapes Gujarat HC in case of Gujarat assessment is that of Natural Resources [(2023) 148 the assessing officer, taxmann.com 476 (dated 11 the sufficiency of November 2022) (enclosed at page reasons for forming nos. 467 to 474 of the legal the belief is that of the paperbook) on the basis that the assessing officer the decisive facts of the Phool Chand sufficiency of reason Bajrang Lal (supra) are absent in for forming the belief the present case, which were that is not for the court to the assessee was found to have judge but it is open to been willfully made a false and an assessee to untrue statement at the time of establish that, in fact, original assessment. there existed no belief or that the belief was Also distinguished in New Delhi not at all a bona fide Television Ltd. [(2020) 424 ITR one or was based on 607 dated 3 April 2020 (SC)] vague, irrelevant and (enclosed at page nos. 549 to 564 non-specific of the legal paperbook) and TMF information. Holdings Limited (ITA No. 2983/Mum/2025 dated 18 July 2025 (Mumbai – ITAT) (enclosed at page nos. 475 to 505 of the legal paperbook)
9 P.V.S. Beedies (P) Ltd. Reopening basis No such issue has been raised in (1999) 237 ITR 13 (SC) information received the present appeal 10 Kasturbhai Lalbhai (1977) from audit party No such issue has been raised in upheld the present 109 ITR 537 (SC) appeal.
11 Thakorbhai Maganbhai Re-opening of No such issue has been raised in Patel [(2017) 392 ITR 444 assessment the present (Delhi HC)] appeal. held to be valid SLP Dismissed in (2017) despite the 245 Taxman 333 (SC) assessing officer not passing & 3512/Mum/2025 Tata Motors Limited 12 Yuvraj [(2009) 315 ITR 84 Where during original In the present case, the allowability (Bombay HC)] of assessment issue deduction under section 32AC of the was not Act has addressed, reopening been specifically inquired into during could the not be said to be course of the proceedings under based on section change of opinion 143(3) of the Act. Therefore, the impugned proceedings have been reopened on the basis of mere change of opinion and thus liable to be quashed. Further, there is no failure on part of the Appellant to disclose fully and truly all material facts. In the following decisions, 13 Honda Siel Power proceedings have Products been quashed after considering the 14 Consolidated Photo & decisions Finvest Ltd [(2006) 281 in case of Yuvraj [(2009) 315 ITR 84 ITR (Bombay 394 (Delhi HC)] HC)], Honda Siel Power Products Ltd.[(2012) 340 ITR 64 (SC)] and Consolidated Photo & Finvest Ltd [(2006) 281 ITR 394 (Delhi HC)]: State Bank of India [(2019) 418 ITR 485 dated 17 January 2019 (Bombay HC)] (enclosed at page nos. 416 to 423 of the legal paperbook) - Department’s SLP dismissed by SC in 447 ITR 368 dated 4 August 2022 (enclosed at page nos. 424 to 425 of the legal paperbook) Nuclear Power Corporation of India Ltd. (2023) Ltd. [(2023) 294 Taxman 365 dated 27 June 2023 (Bombay HC)] IDBI Bank Ltd. [(2025) 173 taxmann.com 881 dated 24 March 2025 (Bombay HC)] Asianet Star Communications (P.) Ltd. [(2022) 422 ITR 47 (Madras HC)] New India Assurance Company Ltd. [(2013) 64 SOT 156 dated 20 February 2013 (Mumbai ITAT)] & 3512/Mum/2025 Tata Motors Limited 15 Murlibhai Fatandas It is not open to the No such issue has been raised in the present Sawlani assessee to appeal. [Special Civil Application object to the re- No. 19320/2015 dated opening by 19 asking the assessing January 2016 (Gujarat officer to HC)] produce the source from where the assessing officer has gathered the information for forming a belief that income chargeable to tax has escaped assessment.
We have considered the rival submissions perused the material available on record and case laws relied upon by both the parties. From the aforesaid discussion, the emerging questions to be answered by us are that:
(i) whether the reopening u/s 147 was merely based on change of opinion; (ii) whether there was any failure on the part of assessee to disclose fully and truly of material fact required for original assessment, which is a pre-condition for reopening beyond 4 years, as per first proviso to section 147 of the Act; and (iii) whether there was any new fact or material surfaced or brought on record by the revenue which allows them to invoke the provisions of section 147.
Apropos, the first issue that whether the reopening was merely a change of opinion, we find substance in the contentions and submissions placed by the ld. AR, and rightly so for the reason that & 3512/Mum/2025 Tata Motors Limited on perusal of ‘reasons to believe’ recorded by ld. AO, which are started with the phrase that “subsequently on perusal of records, it was observed from the computation of total income that the assessee claimed deduction u/s 32AC”. Further, the facts and figures which are referred to in the reason to believe by the ld. AO, are evidently originating from the various information/ documents, which were submitted by the assessee in compliance to queries raised by the AO during the original assessment proceedings u/s 143(3) of the Act, the same were brought to our knowledge by the ld. AR by drawing our attention to the respective documents (referred to supra).
24. In backdrop of such facts, circumstances, provisions of law, interpretation and principles laid down by Hon’ble Courts, after giving a thoughtful consideration to the entire factum of the matter, we are of the considered opinion that the reopening in the present case was totally on account of ‘the change of opinion’, in contraventions to the pre-conditions of 1st proviso to section 147 and dehors any fresh material or fact on records, therefore, the same cannot be sustained.
25. Accordingly, the legal contentions raised by the ld. AR merits substance to concurred with and accordingly ground no. 2 to 5 of the are allowed in favour of the assessee.
26. Resultantly, the notice u/s 148 dated 30.03.2021, issued in the contravention to the mandate of law is held as bad in law, consequently, the subsequent proceedings of reopening assessment on the foundation of such illegal notice are held to be under wrong assumption of jurisdiction for dislodging the concluded assessment without discharging the statutory obligations cast upon the ld. AO & 3512/Mum/2025 Tata Motors Limited to validly invoke the provisions of section 147 of the Act. In conclusion, the impugned order passed by ld. AO u/s 147 r.w.s. 144B dated 30.03.2022 stands quashed.
27. As we have quashed the impugned assessment order for want of valid assumption of jurisdiction by the AO, in terms of our aforesaid observation, thus, we refrain from adverting and to deal with the other contentions raised by the assessee, the same, therefore, are considered as academic only.
ITA No. 3512/Mum/2025 (A.Y. 2015-16)
Since the lead case in has been decided by us by quashing the assessment on account of invalidity of reopening proceedings by the revenue. The other case having similar facts and circumstances except the issue and quantum involved therein which pertains to the claim of assessee u/s 35(2)(AB), wherein the facts of the case, grounds of appeal, reliance on the matching case laws, deliberation on the issue during the reassessment proceedings by raising the queries by the AO and response by the assessee as described in the written synopsis furnished before us. Accordingly, our observations and decision would have equal application mutatis mutandis in ITA 3512/M/2025 for the A.Y. 2015-16, wherein the assessee before us had challenged validity of proceedings u/s 147 r.w.s. 148 of the Act, being bad in law on account of ‘change of opinion’, ‘no satisfaction regarding failure of the assessee in disclosing truly and fully all material facts’ in the original assessment, being the reopening admittedly beyond the period of 4 years as the notice u/s 148 was issued on 27.03.2021 for the A.Y. 2015-16 and also no new / fresh material brought on record to initiate such proceedings.
& 3512/Mum/2025 Tata Motors Limited 29. In the backdrop of aforesaid facts and circumstances and judicial pronouncements, the legal ground no. 2 to 5 of assailed by the assessee are also allowed in favour of the assessee and the impugned assessment order passed u/s 147 r.w.s. 144 r.w.s. 144B of the Act dated 30.03.2022 has been rendered as bad in law / unsustainable.
30. As we have quashed the assessment framed u/s 147 r.w.s.144 r.w.s. 144B dated 30.03.2022 for AY 2015-16, therefore, we refrain to advert and to deliberate upon the remaining the ground of appeal raised by the assessee, which became academic only.
31. In combined results both the captioned appeals of the assessee in & 3512/Mum/2025 are allowed in terms of our observations, as indicated above.