LANDMARK EDUCATION INDIA,MUMBAI vs. ITO (E) II (1), MUMBAI

आदेश / O R D E R

Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order

dated 04/03/2014 of the Ld. First Appellate Authority,

Mumbai. The first ground raised by the assessee pertains

to confirming the action of the Ld. Assessing Officer holding

that reopening of assessment under section 147/148 of the

Income Tax Act, 1961 (hereinafter the Act) as valid, without

appreciating the fact that details were already made

available to the ld. Assessing Officer and thus the order

was passed merely on “Change of Opinion” on the same

facts.

Mistri and Shri S.I. Mogu, ld. counsel for the assessee,

invited our attention to the notice issued to the assessee for

reopening the assessment (page-49 of the paper book) by

claiming that there was no new tangible material with the

Assessing Officer and the assessment framed under section

143(3) of the Act was reopened merely on the basis of

change of opinion. Our attention was further invited to

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pages 6, 21, 24, 30, 31 and 33 of the paper book. Reliance

was placed upon the decision in CIT vs Kelvinator of India

Ltd. (2010) 320 ITR 561 (Supreme Court), CIT vs ICICI

Bank Ltd. [2012] 349 ITR 482(Bom.) NYK Line (India) Ltd.

[2012] 346 ITR 361(Bom) and NDT Systems and Another vs

Income Tax Officer & Ors. [2014] 363 ITR 603(Bom.).

2.1. On the other hand, Shri Nitin Waghmode, ld.

DR, defended the reopening of assessment by placing

reliance upon the decision in the case of Dr. Amin’s

Pathology Laboratory vs. Joint. Commissioner of Income-

tax (No. 1) (2001) 252 ITR 673(BOM). It was argued that

the issue before the Ld. Assessing Officer was whether the

exemption under section 11 of the Act was allowable or not,

thus, there is no change of opinion by the Ld. Assessing

Officer and reasons were duly recorded and the same were

accepted by the assessee. The claim of business income

was disallowed and order was passed in 2016, which was

based upon the order of the Tribunal.

2.2. We have considered the rival submissions and

perused the material available on record. Before adverting

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further, it is our bounded duty to examined the provision of

section 147 of the Act, which is reproduced hereunder:-

“147. If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) : Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: Provided further that nothing contained in the first proviso shall apply in a case where any income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment for any assessment year: Provided also that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. Explanation 1.—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 foregoing proviso. Explanation 2.—For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :— (a) where no return of income has been furnished by the assessee although his total income or the total income of any other person in respect of which he is assessable under this

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Act during the previous year exceeded the maximum amount which is not chargeable to income-tax ; (b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return ; (ba) where the assessee has failed to furnish a report in respect of any international transaction which he was so required under section 92E; (c) where an assessment has been made, but— (i) income chargeable to tax has been underassessed ; or (ii) such income has been assessed at too low a rate ; or (iii) such income has been made the subject of excessive relief under this Act ; or (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed; 4[(ca) where a return of income has not been furnished by the assessee or a return of income has been furnished by him and on the basis of information or document received from the prescribed income-tax authority, under sub-section (2) of section 133C, it is noticed by the Assessing Officer that the income of the assessee exceeds the maximum amount not chargeable to tax, or as the case may be, the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return;] (d) where a person is found to have any asset (including financial interest in any entity) located outside India. Explanation 3.—For the purpose of assessment or reassessment under this section, the Assessing Officer may assess or reassess the income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in the course of the proceedings under this section, notwithstanding that the reasons for such issue have not been included in the reasons recorded under sub-section (2) of section 148. Explanation 4.—For the removal of doubts, it is hereby clarified that the provisions of this section, as amended by the Finance Act, 2012, shall also be applicable for any assessment year beginning on or before the 1st day of April, 2012.” 2.3. So far as, reopening is concerned, there is no

dispute that the notice of reopening under section 148 of

the Act (page-49 of the paper book) was issued within four

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years (as explained by the Ld. Sr. Advocate also), therefore,

now, we shall examine whether reopening was done merely

on the basis of “change of opinion”, as has been claimed by

the assessee. We have perused the record and found that

the original assessment was framed under section 143(3)

on 19/11/2010, assessing the total taxable income at

Rs.2,30,72,774/-. Subsequently, on perusal of record, it

was found by the ld. Assessing Officer that taxable income,

in view of incorrect claim of deduction under section

35DDA of the Act, had escaped assessment, consequently,

proceedings under section 147/148 of the Act were

initiated after recording the reasons and therefore notice

under section 148 of the Act was issued on 01/03/2012

after obtaining approval of Additional DIT(E), Range-II,

Mumbai and the notice was duly served upon the assessee.

The assessee in its income and expenditure account

debited an amount of Rs.3,53,71,733/- towards salary

which includes an amount of Rs.1,74,51,505/- paid as

voluntary retirement scheme (VRS). The ld. Assessing

Officer considered section 35DDA(1) of the Act which is as

under:-

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“35DDA. (1) Where an assessee incurs any expenditure in any previous year by way of payment of any sum to an employee in connection with his voluntary retirement, in accordance with any scheme or schemes of voluntary retirement, one-fifth of the amount so paid shall be deducted in computing the profits and gains of the business for that previous year, and the balance shall be deducted in equal instalments for each of the four immediately succeeding previous years. (2) Where the assessee, being an Indian company, is entitled to the deduction under sub-section (1) and the undertaking of such Indian company entitled to the deduction under sub-section (1) is transferred, before the expiry of the period specified in that sub-section, to another Indian company in a scheme of amalgamation, the provisions of this section shall, as far as may be, apply to the amalgamated company as they would have applied to the amalgamating company if the amalgamation had not taken place. (3) Where the undertaking of an Indian company entitled to the deduction under sub-section (1) is transferred, before the expiry of the period specified in that sub-section, to another company in a scheme of demerger, the provisions of this section shall, as far as may be, apply to the resulting company, as they would have applied to the demerged company, if the demerger had not taken place. (4) Where there has been reorganisation of business, whereby a firm is succeeded by a company fulfilling the conditions laid down in clause (xiii) of section 47 or a proprietary concern is succeeded by a company fulfilling the conditions laid down in clause (xiv) of section 47, the provisions of this section shall, as far as may be, apply to the successor company, as they would have applied to the firm or the proprietary concern, if reorganisation of business had not taken place. (4A) Where there has been reorganisation of business, whereby a private company or unlisted public company is succeeded by a limited liability partnership fulfilling the conditions laid down in the proviso to clause (xiiib) of section 47, the provisions of this section shall, as far as may be, apply to the successor limited liability partnership, as they would have applied to the said company, if reorganisation of business had not taken place. (5) No deduction shall be allowed in respect of the expenditure mentioned in sub-section (1) in the case of the amalgamating company referred to in sub-section (2), in the case of demerged company referred to in sub-section (3), in the case of a firm or proprietary concern referred to in sub- section (4) and in the case of a company referred to in sub-

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section (4A) of this section, for the previous year in which amalgamation, demerger or succession, as the case may be, takes place. (6) No deduction shall be allowed in respect of the expenditure mentioned in sub-section (1) under any other provision of this Act.”

2.4. If the aforesaid provision of section 35DDA of the

Act which deals with amortization of expenditure incurred

under VRS, it says where an assessee incurs any

expenditure in any previous year by way of payment of any

sum to any employee (in connection with his voluntary

retirement) in accordance with any scheme or schemes or

voluntarily retirement, one fifth of the amount so paid shall

be deducted in computing the profit and gains of the

business for that previous year and the balance shall be

deducted in equal installments for each of the four

immediately succeeding previous years. Section 35DDA was

inserted by the Finance Act, 2001 (with effect from

01/04/2001 and scope and effect of such insertion was

elaborated in the Department Circular No.14 of 2001.

Further, the scope and the effect have been elaborated in

Departmental Circular No.8 of 2002 dated 27/08/2002. It

is further noted that by Finance Act, 2005, some

amendment was effected, which has been elaborated in

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Departmental Circular No.3 of 2006, as per which the

employer was allowed entire expenditure incurred on

implementing VRS and such scheme is in accordance with

the guidelines prescribed under clause (10C) of section 10,

then 1/5th of the amount so paid is deducted in computing

the profit & gains of the business for that previous year and

the balance is deducted in equal installments in each of

four succeeding previous years. The existing provision of

section 35DDA do not provide for deduction of the entire

amount paid in more than one installment. The Finance

Act, 2005, has, therefore, amended the aforesaid sub-

section (1) so as to allow the whole expenditure incurred by

the assessee employer in making payment to the employee

in connection with his voluntary retirement either in the

year of retirement or any subsequent year as deduction.

Thus, the amendment would facilitate deduction of each

part payment in five equal installments beginning from the

year in which such part payment is made to the employee.

The present Assessment Year before us, is Assessment Year

2008-09, thus, the Department Circular No.3 of 2006 dated

27/02/2006 will be applicable to the facts of the present

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appeal and not the original section, which was inserted by

the Finance Act, 2001, (w.e.f. 01/04/2001), which was

applied by the Ld. Assessing Officer. It is further noted

that prior to insertion of section 35DDA (w.e.f.

01/04/2001) by the Finance Act, 2001 (14 of 2001), the

assessee was held to be entitled to claim total expenses in

relation to VRS, in one year, i.e. Assessment Year 1996-97

under section 37(1) of the Act. CIT vs Bhore Industries Ltd.

(2003) 264 ITR 180(Bom.), CIT vs Hero Auto Ltd. 343 ITR

342 (Del.) and CIT vs O.E. N. India Ltd. (2012) 349 ITR 554

(Kerala). We further note that the law relating to

compulsory retirement, which has been crystallized into

definite principles, has been summarized in State of

Gujarat vs Umedhbhai M. Patel (2010) 3 SCC 314, 320.

2.5. In the light above proposition of law, now, we

shall analyze various case laws whether the assessment

framed under section 143(3) of the Act can be reopened

merely on the basis of “change of opinion”. The expression

“change of opinion” postulates formation of opinion and

then a change thereof. In the context of assessment

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proceedings, it means formation of belief by an Assessing

Officer resulting from what he thinks on a particular

question. It is a result of understanding, experience and

reflection. A distinction must be drawn between erroneous

application/ interpretation/ understanding of law and

cases where fresh or new factual information comes to the

knowledge of the Assessing Officer subsequent to the

passing of the assessment order. If new facts, material or

information comes to the knowledge of the Assessing

Officer, which was not on record or not made available by

the assessee, during assessment proceedings, the principle

of “change of opinion” will not apply. The reason is that

“opinion” is formed on facts. “Opinion” formed or based on

wrong and incorrect facts or which are belied and untrue

do not get protection and cover under the principle of

“change of opinion”. Factual information or material which

was incorrect or was not available with the Assessing

Officer at the time of original assessment would justify

initiation of reassessment proceedings. The requirement in

such cases is that the information or material available

should relate to material facts. The expression “material

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facts” means those facts which if taken into account would

have an adverse effect on the assessee by a higher

assessment of income than the one actually made. They

should be proximate and not have a remote bearing on the

assessment. The omission to disclose may be deliberate or

inadvertent. The question of concealment is not relevant

and is not a precondition which confers jurisdiction to

reopen the assessment. Correct material facts can be

ascertained from the assessment records also and it is not

necessary that the same come from a third person or

source, i.e., from source other than the assessment

records. However, in such cases, the onus will be on the

Revenue to show that the assessee had stated incorrect and

wrong material facts resulting in the assessment

proceedings on the basis of facts, which are incorrect and

wrong. The reasons recorded and the documents on record

are of paramount importance and will have to be examined

to determine whether the stand of the Revenue is correct. If

a subject-matter, entry or claim/deduction is not examined

by an Assessing Officer, it cannot be presumed that he

must have examined the claim/deduction or the entry, and,

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therefore, it is a case of “change of opinion”. When at the

first instance, in the original assessment proceedings, no

opinion is formed, the principle of “change of opinion”

cannot and does not apply. There is a difference between

“change of opinion” and “failure or omission” of the

Assessing Officer to form an opinion on a subject-matter,

entry, claim, deduction, etc. When the Assessing Officer

fails to examine a subject-matter, entry, claim or deduction,

he forms no opinion. It is a case of no opinion. Whether or

not the Assessing Officer had applied his mind and

examined the subject-matter, claim, etc., depends upon

factual matrix of each case. The Assessing Officer can

examine a claim or subject-matter even without raising a

written query. There can be cases where an aspect or

question is too apparent or obvious to hold that the

Assessing-Officer did not examine a particular subject-

matter, claim, etc. The stand and substance of the assessee

and the Assessing Officer in such cases are relevant.

2.6. Section 114 of the Evidence Act, 1872, is

permissive and not a mandatory provision. Nine situations

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by way of illustrations are stated. These are by way of

example or guidelines. As a permissive provision it enables

to judge to support his judgment but there is no scope of

presumption when facts are known. Presumption of facts

under section 114 is rebuttable. The presumption raised

under illustration (e) to section 114 of the Act means that

when an official act is proved to have been done, it will be

presumed to have been regularly done but it does not raise

any presumption that an act was done for which there is no

evidence or proof.

(i) Assessments cannot be validly reopened under section 147 of the Act even within four years, if an assessee had furnished full and true particulars at the time of original assessment with reference to the income alleged to have escaped assessment, if the original assessment was made under section 143(3). So long as the assessee has furnished full and true particulars at that time of original assessment and so long as the assessment order is framed under section 143(3) of the Act, it matters little that the Assessing Officer did not ask any question or query with respect to one entry or note but had raised queries and questions on other aspects.

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(ii) Section 114(e) of the Act can be applied to an assessment order framed under section 143(3) of the Act, provided there has been a full and true disclosure of all material and primary facts at the time of original assessment. In such a case if the assessment is reopened in respect of a matter covered by the disclosure, it would amount to change of opinion. The ratio laid down in the following cases usefully throw lights on the issue in hand:-

A. L. A. Firm v. CIT [1976] 102 ITR 622 (Mad) (para 9) A. L. A. Firm v. CIT [1991] 189 ITR 285 (SC) (paras 32, 60, 61) Anandji Haridas and Co. P. Ltd. v. Kushare (S. P.), STO [1968] 21 STC 326 (SC) (para 35) Bankipur Club Ltd. v. CIT [1971] 82 ITR 831 (SC) (para 34) Barium Chemicals Ltd. v. CLB [1966] 36 Comp Cas 639 (SC) (para 56) BLB Ltd. v. Asst. CIT [2012] 343 ITR 129 (Delhi) (para 14) Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191 (SC) (para 45) CIT v. A. Raman and Co. [1968] 67 ITR 11 (SC) (paras 9, 34) CIT v. Chase Bright Steel Ltd. (No. 1) [1989] 177 ITR 124 (Bom) (para 21) CIT v. DLF Power Ltd. [2012] 345 ITR 446 (Delhi) (para 14) CIT v. Eicher Ltd. [2007] 294 ITR 310 (Delhi) (paras 10, 28) CIT v. Kelvinator of India Ltd. [2002] 256 ITR 1 (Delhi) [FB] (paras 2, 12, 20, 48) CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561 (SC) (paras 2, 28) CIT v. Khemchand Ramdas [1938] 6 ITR 414 (PC) (para 50) CIT v. P. V. S. Beedies P. Ltd. [1999] 237 ITR 13 (SC) (para 18) CIT (Asst.) v. Rajesh Jhaveri Stock Brokers P. Ltd. [2007] 291 ITR 500 (SC) (paras 4, 12) CIT v. Sharma (H. P.) [1980] 122 ITR 675 (Delhi) (para 9) Consolidated Photo and Finvest Ltd. v. Asst.CIT [2006] 281 ITR 394 (Delhi) (paras 9, 11) Dalmia P. Ltd. v. CIT [2012] 348 ITR 469 (Delhi) (para 17) G. R. Ramachari and Co. v. CIT [1961] 41 ITR 142 (Mad) (paras 38, 61) Hari Iron Trading Co. v. CIT [2003] 263 ITR 437 (P&H) (para 10) ITO v. Habibullah (S. K.) [1962] 44 ITR 809 (SC) (para 50) Indian and Eastern Newspaper Society v. CIT [1979] 119 ITR 996 (SC) (paras 34, 35) Indian Hume Pipe Co. Ltd. v. Asst. CIT [2012] 348 ITR 439 (Bom) (para 17)

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3i Infotech Ltd. v. Asst. CIT [2010] 329 ITR 257 (Bom) (para 26) International Woollen Mills v. Standard Wool (U. K.) Ltd. [2001] 5 SCC 265 (para 30) Kalyanji Mavji and Co. v. CIT [1976] 102 ITR 287 (SC) (paras 9, 33, 34, 35) KLM Royal Dutch Airlines v. Asst. Director of I. T. [2007] 292 ITR 49 (Delhi) (para 12) Kunhayammed v. State of Kerala [2000] 245 ITR 360 (SC) (para 31) Maharaj Kumar Kamal Singh v. CIT [1959] 35 ITR 1 (SC) (para 34) Muthukrishna Reddiar v. CIT [1973] 90 ITR 503 (Ker) (para 9) New Light Trading Co. v. CIT [2002] 256 ITR 391 (Delhi) (para 18) Praful Chunilal Patel v. Makwana (M. J.)/Asst. CIT [1999] 236 ITR 832 (Guj) (para 21) Snowcem India Ltd. v. Deputy CIT [2009] 313 ITR 170 (Bom) (para 31) Sri Krishna P. Ltd. v. ITO [1996] 221 ITR 538 (SC) (paras 56, 58) Suresh Budharmal Kalani v. State of Maharashtra [1998] 7 SCC 337 (para 29) Union of India v. Suresh C. Baskey [1996] AIR 1996 SC 849 (para 20) United Mercantile Co. Ltd. v. CIT [1967] 64 ITR 218 (Ker) (para 9)

"(i) What is meant by the term 'change of opinion' ?

(ii) Whether assessment proceedings can be validly reopened under section 147 of the Act, even within four years, if an assessee has furnished full and true particulars at the time of original assessment with reference to income alleged to have escaped assessment and whether and when in such cases reopening is valid or invalid on the ground of change of opinion ? (iii) Whether the bar or prohibition under the principle 'change of opinion' will apply even when the Assessing Officer has not asked any question or query with respect to an entry/note, but there is evidence and material to show that the Assessing Officer had raised queries and questions on other aspects ? (iv) Whether and in what circumstances section 114(e) of the Evidence Act can be applied and it can be held that it is a case of change of opinion ?"

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2.7. For reopening an assessment made under

section 143(3) of the Act, the following conditions are

required to be satisfied:-

(i) the Assessing Officer must form a tentative or prima facie opinion on the basis of material that there is underassessment or escapement of income ; (ii) he must record the prima facie opinion into writing ; (iii) the opinion formed is subjective but the reasons recorded or the information available on record must show that the opinion is not a mere suspicion. (iv) reasons recorded and/or the documents available on record must show a nexus or that in fact they are germane and relevant to the subjective opinion formed by the Assessing Officer regarding escapement of income. (v) In cases where the first proviso applies, there is an additional requirement that there should be failure or omission on the part of the assessee in disclosing full and true material facts. The Explanation to the section stipulates that mere production of books of account or other documents from which the Assessing Officer could have, with due diligence, inferred material facts, does not amount to "full and true disclosure of material facts" (the proviso is not applicable where reasons to believe for issue of notice are recorded and notice is issued within four years from the end of assessment year). 2.8. The expression "change of opinion" postulates

“formation of opinion” and then a “change thereof”. In the

context of section 147 of the Act it implies that the

Assessing Officer should have formed an opinion at the first

instance, i.e., in the proceedings under section 143(3) and

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thereafter, with the initiation of the reassessment

proceeding, the Assessing Officer proposes or wants to take

a different view. The word "opinion" is derived from the

latin word "opinari" which means "to believe", "to think".

The word "opinion" as per the Black's Law Dictionary

means a statement by a judge or a court of a decision

reached by him incorporating cause tried or argued before

them, expounding the law as applied to the case and,

detailing the reasons upon which the judgment is based.

Advanced Law Lexicon by P. Ramanatha Aiyar (third

edition) explains the term "opinion" to mean "something

more than mere retaining of gossip or hearsay; it means

judgment or belief, that is, a belief or a conviction resulting

from what one thinks on a particular question . . . An

opinion is a conviction based on testimony . . . they are as a

result of reading, experience and reflection".

2.9. In the context of assessment proceedings, it

means formation of belief by an Assessing Officer resulting

from what he thinks on a particular question. It is a result

of understanding, experience and reflection to use the

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words in Law Lexicon by P. Ramanatha Aiyar. The question

of change of opinion arise when an Assessing Officer forms

an opinion and decides not to make an addition or holds

that the assessee is correct and accepts his position or

stand. In Hari Iron Trading Co. v. CIT [2003] 263 ITR 437

(P&H), a Division Bench of the Hon’ble Punjab and Haryana

High Court observed that an assessee has no control over

the way an assessment order is drafted. It was observed

that, generally, the issues which are accepted by the

Assessing Officer do not find mention in the assessment

order and only such points are taken note of on which the

assessee's explanations are rejected and

additions/disallowances are made. Applying the principles

laid down by the Full Bench of this court as well as the

observations of the Punjab and Haryana High Court, we

find that if the entire material had been placed on record by

the assessee before the Assessing Officer at the time when

the original assessment was made and the Assessing

Officer applied his mind to that material and

accepted/rejected the view canvassed by the assessee, then

merely because he did express this in the assessment

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order, that by itself would not give him a ground to

conclude that income has escaped assessment and,

therefore, the assessment needed to be reopened. On the

other hand, if the Assessing Officer did not apply his mind

and committed a lapse, there is no reason why the assessee

should be made to suffer the consequences of his lapses.

2.10. The Hon’ble Delhi High Court in Consolidated

Photo and Finvest Ltd. [2006] 281 ITR 394 (Delhi) held as

under:

"In the light of the authoritative pronouncements of the Supreme Court referred to above, which are binding upon us and the observations made by the High Court of Gujarat with which we find ourselves in respectful agreement, the action initiated by the Assessing Officer for reopening the assessment cannot be said to be either incompetent or otherwise improper to call for interference by a writ court. The Assessing Officer has in the reasoned order passed by him indicated the basis on which income exigible to tax had in his opinion escaped assessment. The argument that the proposed reopening of assessment was based only upon a change of opinion has not impressed us. The assessment order did not admittedly address itself to the question which the Assessing Officer proposes to examine in the course of reassessment proceedings. The submission of Mr. Vohra that even when the order of assessment did not record any explicit opinion on the aspects now sought to be examined, it must be presumed that those aspects were present to the mind of the Assessing Officer and had been held in favour of the assessee is too far-fetched a proposition to merit acceptance. There may indeed be a presumption that the assessment proceedings have been regularly conducted, but

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there can be no presumption that even when the order of assessment is silent, all possible angles and aspects of a controversy had been examined and determined by the Assessing Officer. It is trite that a matter in issue can be validly determined only upon application of mind by the authority determining the same. Application of mind is, in turn, best demonstrated by disclosure of mind, which is best done by giving reasons for the view which the authority is taking. In cases where the order passed by a statutory authority is silent as to the reasons for the conclusion it has drawn, it can well be said that the authority has not applied its mind to the issue before it nor formed any opinion. The principle that a mere change of opinion cannot be a basis for reopening completed assessments would be applicable only to situations where the Assessing Officer has applied his mind and taken a conscious decision on a particular matter in issue. It will have no application where the order of assessment does not address itself to the aspect which is the basis for reopening of the assessment, as is the position in the present case. It is in that view inconsequential whether or not the material necessary for taking a decision was available to the Assessing Officer either generally or in the form of a reply to the questionnaire served upon the assessee. What is important is whether the Assessing Officer had based on the material available to him taken a view. If he had not done so, the proposed reopening cannot be assailed on the ground that the same is based only on a change of opinion." 2.11. Hon'ble jurisdictional High Court in CIT vs ICICI

Bank Ltd. (2012) 349 ITR 482(Bom.), vide order dated

09/07/2012 held as under:-

• In this case the assessment is reopened within a period of 4 years from the end of the relevant assessment year. In such cases it is settled law that the power of the Assessing Officer to reopen the assessment is not subject to the limitation provided in the proviso to section 147 namely failure on the part of the assessee to fully and truly disclose all material facts necessary for assessment.

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• Consequently, even where an assessee has disclosed all facts fully and truly for the purpose of assessment, the Assessing Officer would still have jurisdiction to reopen the assessment, if he has reason to believe that income chargeable to tax has escaped assessment. However, this reason to believe that any income chargeable to tax has escaped assessment even within a period of four years from the end of the relevant assessment year, has to arise not on account of a mere change of opinion but on the basis of some tangible material. [Para 7] • Therefore the sine qua non to issue a notice for reopening of assessments even within a period of less than 4 years from the end of the assessment year, is reason to believe that income has escaped assessment and this reason to believe should be on the basis of tangible material, otherwise the exercise of power to reopen would be a review of the assessment order. [Para 7] • In the instant case, the impugned notice was based on the ground that the income earned from the non-fund based activities of the respondent had been included in the fund based income so as to claim excess deduction under section 36(1)(viii). The reasons only provide a conclusion and give no material particulars of information obtained during the course of assessment proceedings for the assessment year 1998-99. Therefore the reasons recorded do not indicate any tangible material which has led to a reasonable belief that income has escaped assessment. • Further case of the Department is that expenses attributable to non-fund based activity should be 10 per cent and not 20.1 per cent as claimed by the respondent. Consequently the expenses attributable to fund based activity would be 90 per cent and not 79.99 per cent resulting in less profit from fund based activity (long term finance). • The assessee had allocated its expenditure between fund based and non- fund based activity on the basis of the ratio of the income earned between fund and non-fund based activity. Therefore there was some basis for distributing the expenses. Neither the reasons nor the order of the Assessing officer indicate the basis on which 10% of expenditure is alone attributable to non-fund activity. • This again establishes absence of any tangible material obtained during proceeding for assessment year 1998-99 to form a reasonable belief that income has escaped assessment. In the circumstances the exercise of powers under section 148 is unwarranted. [Para 8] • Further, the Assessing Officer while reassessing the assessee has in fact taken a ground different from the grounds in the reasons recorded for reopening the assessment under section 148. The reasons furnished for reopening the assessment alleged that non-fund income had been shown in fund based income so as to avail of a higher deduction. • However, the basis of the reassessment order was that 20.1 per cent out of the gross expenses attributed to non-fund income was excessive and ought

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to be restricted to only 10 per cent. Thus, the basis of the order was completely different from the reasons recorded for reopening the assessment. [Para 13] • In view of the above, the Tribunal was correct in taking the view that the reopening of assessment was not sustainable in law. [Para 14]

2.12. In another case of NYK Line (India) Ltd. vs DCIT

(2012) 346 ITR 361(Bom.), order dated 10/02/2012 held as

under:-

Initiation of reassessment proceedings on basis of assessment for subsequent assessment year • Undoubtedly an order of assessment which has been passed for a subsequent assessment year may furnish a foundation to reopen an assessment for an earlier assessment year. However, there must be some new facts which come to light in the course of assessment for the subsequent assessment year which emerge in the order of assessment. Otherwise, a mere change of opinion on the part of the Assessing Officer in the course of assessment for a subsequent assessment year would not by itself legitimise the reopening of an assessment for an earlier year. [Para 14] Whether reassessment proceedings were rightly initiated in assessee's case • The assessee in the instant case had made a disclosure in the notes forming part of the accounts of the nature of payments required to be made to the foreign principal on account of container detention charges. • The Assessing Officer specifically discussed in the course of the assessment order the matters in respect of which he had made a disallowance either fully or in part. Since the Assessing Officer did not find any justification to reject the claim of the assessee in respect of the issue of container detention charges, there was no specific discussion in the course of order. [Para 17] • Consequently and in this background the mere fact that the Assessing Officer for Assessment Year 2007-08 had come to a different conclusion would not justify the reopening of the assessment for Assessment Year 2006-07. [Para 18] 2.13. The Hon'ble jurisdictional High Court in NDT

Systems & Anothers vs Income Tax Officer (2014) 363 ITR

603(Bom.) held as under:-

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“This petition under article 226 of the Constitution of India seeks to quash a notice dated March 20, 2012, issued under section 148 of the Income-tax Act, 1961 ("the Act"). The impugned notice seeks to reopen the assessment for the assessment year 2007-08 on the ground that the Assessing Officer has reasons to believe that income chargeable to tax has escaped assessment within the meaning of section 147 of the Act. 2. At the request of the advocates for the petitioner and the respondent the petition is taken up for final disposal at the stage of admission itself. 3. Brief facts leading to this petition are as follows : (a) At all times relevant to this petition, the petitioner firm was engaged in non- destructive testing business which includes testing of the blasting contents of the plant and machinery along with building which are being installed by its clients. This activity of testing was mainly supervised and controlled by the guidelines issued by the Bhabha Atomic Research Centre (BARC) as it involves the use of radio active material. (b) On October 21, 2007, the petitioner filed its return of income for the assessment year 2007-08 declaring a total income of Rs. 7.06 lakhs. Thereafter, notice under section 143(2) of the Act was issued to the petitioner by the Assessing Officer. During the course of assessment proceedings the Assessing Officer found that the labour charges and radiography charges which were debited as expenses by the petitioner had not suffered tax deduction at source. Consequently, the petitioner was called upon to explain why the radiography and labour charges paid by them and debited as expenses should not be disallowed under section 40(a)(ia) of the Act while computing its profits. (c) In response to the above query, the petitioner submitted complete details of radiography and labour charges paid by it indicating the name and address of the recipients. The petitioner, inter alia, pointed out that the job of testing carried out by it, is mainly supervised by the BARC, as it involves use of radio active material. The petitioner also pointed out that the persons engaged by them for radiography are generally skilled personnel while those for labour charges were generally unskilled personnel. However, according to the petitioner, no deduction of tax at source is required to be made as the payment made to them were in fact in the nature of wages and salaries. Therefore, the provisions of tax deduction at source under section 194C of the Act would not apply and, consequently, no occasion to invoke section 40(a)(ia) of the Act can arise. The Assessing Officer, after considering the petitioner's response in the assessment order, did not accept the same and held that the tax deduction at source was required to be done by the petitioner in respect of radiography and labour charges paid under section 194C of the Act. In the circumstances, the amount of Rs. 4.08 lakhs which was claimed towards the labour charges and radiography charges was disallowed under section 40(a)(ia) of the Act and added to the total income of the petitioners. In the result, the assessment order dated December 11, 2009, assessed the petitioner to a total income of Rs. 12.05 lakhs.

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(d) On March 28, 2012, the Assessing Officer issued the impugned notice under section 148 of the Act to the petitioner. By the impugned notice the petitioner was informed by the Assessing Officer that he proposes to reassess the petitioner for the assessment year 2007-08, as he has reason to believe that the income assessable to tax has escaped assessment. In response to the above, the petitioner sought a copy of reasons recorded for issuing the impugned notice under section 148 of the Act. (e) On July 23, 2012, the Assessing Officer communicated the reasons for reopening the assessment for the assessment year 2007-08 to the petitioner as under: "Reasons for issue of notice under section 148 of the Income-tax Act, 1961 : The assessee-firm filed its return of income for the assessment year 2007-08 declaring a total income at Rs. 7,06,948. The assessee received testing charges of Rs. 2.49 crores on which expenses on account of radiography and labour charges were claimed. The case was selected for scrutiny and assessment was completed under section 143(3) on December 11, 2009, assessing the total income at Rs. 12,05,020 after disallowing the contract payments made in excess of Rs. 50,000 during the year. On verification, it is noticed that the payments towards radiography charges and labour charges, are in the nature of contract payments and disallowed these expenses as per the provisions of section 40(a)(ia), vide order dated December 11, 2000, and the items considered for disallowance are payments made in excess of Rs. 50,000 in the relevant financial year. These payments would actually fall under the head 'fees for professional or technical services' and, accordingly, all the payments made in excess of Rs. 20,000 are liable for deduction of tax at source. Therefore, the total disallowance as per the provisions of section 40(a)(ia) of the Act, 1961 are Rs. 94,93,977 instead of Rs. 4,08,433. Therefore, I have reasons to believe that income to the tune of Rs. 90,84,844 has escaped assessment for the assessment year 2007-08." (f) By letters dated August 23, 2012, and October 4, 2012, the petitioner objected to the reopening of the assessment under section 147 and 148 of the Act for the assessment year 2007-08. The petitioner pointed out that there is no warrant to reassess the petitioner for the assessment year 2007- 08, particularly because the entire payment made by them as labour charges and radiography charges were scrutinized and considered by the Assessing Officer at the time of regular assessment. Besides the petitioner pointed out that the labour charges were paid for performing labour jobs like ducting, laying of pipes and other related labour jobs. Therefore, the same cannot be classified as professional job work. (g) On October 15, 2012, the Assessing Officer rejected the petitioner's objection dated August 23, 2012, and October 4, 2012, to reopen the

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assessment for the assessment year 2007-08 under section 147 and section 148 of the Act. The Assessing Officer disposes of the objections of the petitioner to the proposed reopening of assessment for the assessment year 2007-08 as under : "In this case, this is to inform you that your objections in respect of ongoing assessment proceedings have been carefully considered by the undersigned. The following facts lead to initiation of proceedings under section 147 : (a) There is difference of Rs. 21,61,168 on account of payments received by you and as per the IDS certificates issued by you from the following parties, in the financial year 2006-07 relevant to the assessment year 2007-08 ; S.No. Deductor's name Difference Amt. in Rs. 1. Hindalco Industries Ltd. 62,835.00 2. IFFCO, Allahabad 70,328.00 3. Onshore Const. Co. Pvt. Ltd. 1,51,943.00 4. Perron Engg. Const. Ltd. 25,416.00 5. Power Mech Projects P. Ltd. 22,189.00 6. Reliance Industries, Jamnagar 5,36,577.00 Tulasidharan Bhaskaran Metal 7. 7,31,493.00 Crafts, Surat 8. UB Engg. Ltd. Pune, 5,26,647.00 9. United Construction Co. 33,743.00 (b) The total difference of Rs. 21,61,168 had led to underassessment of income. (c) The payments made under the head radiography charges and labour charges aggregating to Rs. 17,23,647 and 77,69,630 were made to various persons like Sr. Technician, Asstt. R. T. Technician, Jr. Technician, Sr. Asstt. Radiologist, etc., as is evident from the chart of such payments submitted by you in the earlier assessment proceedings. Thus, all such payments, unambiguously, fall in the category of payments made for receiving technical services, attracting the provisions of section 194J and section 194C. Thus, for the purposes of Chapter XVII-B, the threshold limit of Rs. 20,000 would be applicable instead of Rs. 50,000. (d) As no TDS was deducted from the payments which exceeded the threshold limit of Rs. 20,000 the expenses were liable for disallowance under section 40(a)(ia) of the Income-tax Act. (e) At no stage of the earlier assessment proceedings you established the fact that the payees were not qualified professional. Even in the present

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proceedings you have failed to establish the same with documentary evidence. (f) The leniency sought by you, in the light of death of one of the partners, even though unfortunate, is irrelevant to the present proceedings. (g) The above facts were not considered by the then Assessing Officer. Thus, leading to escapement and underassessment of income by Rs. 1,12,46,012. In view of the above facts, I am convinced that the reopened assessment proceedings, for the assessment year 2007-08 are valid and the notice issued under section 148 is in accordance with the provisions of law. Hence, your objection to the present proceedings under section 147 and that in respect of issue of notice under section 148 are without any basis and, accordingly, the same is rejected. Accordingly, your objection stands disposed of. You are requested to file requisite details as per the questionnaire dated July 23, 2012." (h) The respondent has filed an affidavit-in-reply dated November 20, 2012, in support of the impugned notice. In its reply the respondent have annexed a communication dated March 14, 2012, addressed by the Assessing Officer to the Joint Commissioner of Income-tax seeking his approval to reassess the petitioner for the assessment year 2007-08. In that communication the Assessing Officer has referred to the objection raised by the internal auditor of the department to assessment order allowing the expenses on account of radiography and labour charges holding them to be contract payments for the deduction of source. Ms. Aasifa Khan, counsel appearing for the petitioner in support of the petition submits as under : (a) even where the impugned notice dated March 28, 2012, under section 148 of the Act has been issued within a period of four years from the end of the relevant assessment years the jurisdiction to reopen an assessment cannot be exercised merely on account of change of opinion ; (b) all material facts with regard to the assessment year 2007-08 had been disclosed by the petitioner to the Assessing Officer during the original assessment proceedings leading to assessment order under section 143(3) of the Act dated December 11, 2009. There is no new material fact which has come to the notice of the Assessing Officer that could lead to his reasonable belief that income has escaped assessment. In fact, the reasons provided only indicate a different opinion on the same facts duly considered in the assessment order dated December 11, 2003, passed under section 143(3) of the Act ; (c) the reasons for reopening as communicated to the petitioner does not indicate as one of the reasons that amount of Rs. 21.61 lakhs being the difference between the amount received by the petitioner and the tax deduction at source certificate issued by the payer. However, the aforesaid ground is indicated as a reason for rejecting the objection to reopening the

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assessment for the assessment year 2007-08 under section 148 of the Act. This according to her is clearly not permissible ; and (d) the impugned notice has been issued by the Assessing Officer at the instance of the internal audit report and not on independent application of mind on the part of the Assessing Officer. In support she invites our attention to the affidavit-in-reply and in particular letter dated March 14, 2012, addressed by the Assessing Officer to the Joint Commissioner for approval to reopen assessment. In the aforesaid letter seeking sanction to reopen assessment, mention is made of objection raised by the internal audit department. This is clearly not permissible. In view of the above, the petition be allowed and the impugned notice be quashed and set aside. 4. As against the above, Mr. Arvind Pinto, counsel appearing for the Revenue submits as under : (a) the impugned notice has been issued within four years from the end of the relevant assessment year and, therefore, cannot be faulted ; (b) the reopening of the assessment by a notice dated March 20, 2012, under section 148 of the Act is valid and proper as income had escaped assessment for the assessment year 2007-08 inasmuch as the petitioner had claimed deduction of payment made on account of labour charges and radiography charges without having disclosed the fact that such payment have been made to skilled persons. Therefore, professional payments ; (c) the payment made to skilled personnel are in the nature of technical fees liable to tax deduction at source under section 194J of the Act and not section 194C of the Act as done in the assessment order dated December 11, 2009. Consequently, any fees paid for technical services in excess of Rs. 20,000 has to bear tax deduction at source. Therefore, the Assessing Officer has reason to believe that income has escaped assessment for the assessment year 2007-08 ; and (d) no prejudice would be caused to the petitioner if it subjects itself to reassessment proceedings. This is because all the pleas of the petitioner with regard to the inapplicability of section 194C of the Act would be examined during the reassessment proceeding. 5. In view of the above, Mr. Pinto submits that the petition be dismissed. We have considered the submissions. We find that the notice dated March 20, 2012, under section 148 of the Act has been issued within a period of four years from the end of the relevant assessment year, i.e., 2007-08. In such circumstances, the proviso to section 147 of the Act is clearly not applicable. Therefore, it is not necessary for the Revenue to prima facie establish that there has been a failure on the part of the petitioner to disclose fully and truly all material facts necessary for assessment, while issuing a notice reopening a completed assessment. However, even in case

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of reopening of assessment within a period of four years from the end of the relevant assessment year the Assessing Officer has to have reason to believe that income chargeable to tax has escaped assessment on the basis of tangible material. The words "reason to believe" has been construed by the Supreme Court in the matter of CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561/187 Taxman 312 ; wherein the court has observed: "However one needs to give schematic interpretation to the words 'reason to believe' failing which we are afraid section 147 would give arbitrary powers to the Assessing Officer to reopen assessment on the basis of 'mere change of opinion' which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review ; he has power to reassess. But reassessment has to be based on fulfilment of certain preconditions and if the concept of 'change of opinion' is removed as contended by the department then in the garb of reopening the assessment review would take place." 6. The aforesaid observations of the apex court make it clear that sanctity must be attached to the assessment orders and it cannot be disturbed merely on account of change of opinion This sanctity to assessment orders is not based on the basis of the time that has lapsed from the assessment order passed in the regular proceedings to the issue of notice for reopening an assessment. 7. Therefore, where all material facts necessary for determination of the income have been disclosed by the assessee and the Assessing Officer has taken a particular view on those disclosed facts as reflected in the assessment order passed in regular proceedings, then without anything more, it would not be open to reopen those assessment proceedings. For in such a case it is a clear case of change of opinion. In the present facts it is very clear that during the assessment proceedings leading to the assessment order dated November 11, 2009, the petitioner had disclosed all facts with regard to deduction being claimed on account of labour charges and radiography charges. In fact, the assessment order dated December 11, 2009, records the fact that a notice was issued to the petitioner to explain why the expenses on account of labour and radiography charges should not be disallowed under section 40(a)(ia) of the Act. The petitioner explained its view point and the Assessing Officer on consideration of those facts in his order of assessment dated December 11, 2009, concluded that these payments on account of radiography charges and labour charges are tax deductible at source in terms of section 194C of the Act. Further, the obligation on the part of the assessee is only to make a full disclosure of primary facts and the inferences to be drawn therefrom and the application of law thereon is the job of the Assessing Officer. The petitioner has disclosed all primary facts and on consideration of those facts as reflected in the assessment order dated December 11, 2003, the amount of income has been computed after holding that IDS has to be deducted under section 194C of the Act.

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2.14. From the foregoing discussion, the clear position

emerges as under:

(1) Reassessment proceedings can be validly initiated in case return of income is processed under section 143(1) and no scrutiny assessment is undertaken. In such cases there is no change of opinion. (2) Reassessment proceedings will be invalid in case the assessment order itself records that the issue was raised and is decided in favour of the assessee. Reassessment proceedings in the said cases will be hit by the principle of "change of opinion". (3) Reassessment proceedings will be invalid in case an issue or query is raised and answered by the assessee in original assessment proceedings but thereafter the Assessing Officer does not make any addition in the assessment order. In such situations it should be accepted that the issue was examined but the Assessing Officer did not find any ground or reason to make addition or reject the stand of the assessee. He forms an opinion. The reassessment will be invalid because the Assessing Officer had formed an opinion in the original assessment, though he had not recorded his reasons. 2.15. Thus, where an Assessing Officer incorrectly or

erroneously applies law or comes to a wrong conclusion

and income chargeable to tax has escaped assessment,

resort may be made through section 263 of the Act. But

initiation of reassessment proceedings will be invalid on the

ground of change of opinion. Here a distinction has to be

drawn between erroneous application/interpretation/

understanding of law and cases where fresh or new factual

information comes to the knowledge of the Assessing

Officer subsequent to the passing of the assessment order.

If new facts, material or information comes to the

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knowledge of the Assessing Officer, which was not on

record and available at the time of the assessment order,

the principle of "change of opinion" will not apply. The

reason is that "opinion" is formed on facts. "Opinion"

formed or based on wrong and incorrect facts or which are

belied and untrue do not get protection and cover under the

principle of "change of opinion". Factual information or

material which was incorrect or was not available with the

Assessing Officer at the time of original assessment would

justify initiation of reassessment proceedings. The

requirement in such cases is that the information or

material available should relate to material facts. The

expression "material facts" means those facts which if

taken into account would have an adverse effect on the

assessee by a higher assessment of income than the one

actually made. Correct material facts can be ascertained

from the assessment records also and it is not necessary

that the same may come from a third person or source, i.e.,

from source other than the assessment records. However,

in such cases, the onus will be on the Revenue to show that

the assessee had stated incorrect and wrong material facts

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resulting in the Assessing Officer’s proceeding on the basis

of facts, which are incorrect and wrong. The reasons

recorded and the documents on record are of paramount

importance and will have to be examined to determine

whether the stand of the Revenue is correct. A decision

from Hon’ble Delhi High Court dated September 26, 2011

in Dalmia P. Ltd. v. CIT [2012] 348 ITR 469 (Delhi) and

another decision from Hon’ble jurisdictional High Court

dated November 8, 2011, in Indian Hume Pipe Co. Ltd. v.

Asst. CIT [2012] 348 ITR 439 (Bom.) are two such cases,

which throw light on the issue. If the aforesaid judicial

pronouncements are kept in juxtaposition with the facts of

the present appeal, admittedly, the assessee furnished

audited financial statement for the year ending

31/03/2008, computation of total income and other

relevant material for making its claim. It is not the case

that any new tangible material came to the notice of the Ld.

Assessing Officer at the later stage. Rather, it is a case,

where the Ld. Assessing Officer incorrectly applied the

provision of the Act, therefore, on the same set of

facts/claim, merely on the basis of “change of Opinion”, the

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completed assessment under section 143(3) of the Act is

not permissible. It is noteworthy that at the relevant time,

the assessee was entitled to benefit of section 12A of the

Act, therefore, from this angle also, the Ld. Assessing

Officer was not within the legal parameters to reopen the

completed assessment. Thus, so far as, reopening is

concerned, we are of the view that it was wrongly reopened,

consequently, this ground of the assessee is allowed.

Finally, the appeal of the assessee is allowed.

This Order was pronounced in the open court in the

presence of ld. representatives from both sides at the

conclusion of the hearing on 04/10/2018.

Sd/- Sd/- (G. Manjunatha) (Joginder Singh) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER

मुंबई Mumbai; �दनांक Dated : 09/10/2018

f{x~{tÜ? P.S/.�न.स.,

आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to :

ITA. No.4871/Mum/2014 35 Landmark Education India

आदेशानुसार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt. Registrar)8 आयकर अपील�य अ�धकरण, मुंबई / ITAT, Mumbai