“change of opinion”

Ambawatt Buildwell Pvt. Ltd., New Delhi vs. Pr. CIT (C), Gurgaon

In the result, the appeal filed by the assessee is allowed

Bench: Shri R.K. Panda & Ms Suchitra Kambleassessment Year: 2014-15 Ambawatt Buildwell Pvt. Ltd., Vs Pr. Cit (C), Kh 267, 1St Floor, 7Th Floor, Hsiidc Building, Chatterpur Enclave, Udyog Vihar, Phase-V, Mehrauli, Gurgaon. New Delhi. Pan: Aagca0991B (Appellant) (Respondent) Assessee By : Shri P.C. Yadav, Advocate Revenue By : Shri Satpal Gulati, Cit, Dr Date Of Hearing : 10.03.2021 Date Of Pronouncement : 21.05.2021 Order Per R.K. Panda, Am: This Appeal Filed By The Assessee Is Directed Against The Order Dated 17Th February, 2017 Passed U/S 263 Of The Act By The Cit, Central, Gurgaon, Relating To Assessment Year 2014-15. 2. Facts Of The Case, In Brief, Are That The Assessee Is A Company Engaged In The Business Of Real Estate. It Filed Its Return Of Income On 30Th September, 2014, Declaring Nil Income. The Case Of The Assessee Was Selected For Compulsory Scrutiny & A Notice U/S 143(2) Of The Act Was Issued To The Assessee On 20Th September, 2015. Notice U/S 142(1) Along With A Questionnaire Was Also Issued On 12Th May, 2016. In Response To The Statutory Notices Issued By The Ao, The Assessee Appeared Before Him From Time To Time & Furnished Replies Which Were Kept On Record. The Ao, On The Basis Of Various Details Furnished Before Him, Disallowed An Amount Of Rs.3,91,936/- U/S 40A(3) Out Of Car Repairs & Maintenance & Determined The Total Loss Of The Assessee At Rs.94,25,270/- As Against The Returned Loss Of Rs.98,17,203/-.

That on the fact and circumstances of the case and in law, the views expressed by the Ld. Pr. CIT are mere ‘change of opinion’ or taking a view different from the view taken by the AO after detailed examination of various issues. 6. That in the facts and circumstances

Addl. CIT, Special Range-7, New Delhi vs. Rites Ltd., New Delhi

In the result, the appeal of the assessee is allowed and Revenue’s appeal is dismissed

Bench: Shri Anil Chaturvedi & Shri Amit Shukla

reasons recorded are merely on the basis of material already on record and as such the reopening u/s 148 is based on change of opinion and same is bad in law. (iv) That even otherwise, re-appreciation of same material being impermissible under the provisions of section ... provisions of section 37/36(l)(vii) of the Act. (iii) That in any case, the disallowance is merely on the basis of change of opinion and same is not sustainable in the case of reassessment u/s 147 of the Act. 3(i) That on facts and circumstances of the case

Rites Ltd., New Delhi vs. Addl. CIT, Spl. Range- 7, New Delhi

In the result, the appeal of the assessee is allowed and Revenue’s appeal is dismissed

Bench: Shri Anil Chaturvedi & Shri Amit Shukla

reasons recorded are merely on the basis of material already on record and as such the reopening u/s 148 is based on change of opinion and same is bad in law. (iv) That even otherwise, re-appreciation of same material being impermissible under the provisions of section ... provisions of section 37/36(l)(vii) of the Act. (iii) That in any case, the disallowance is merely on the basis of change of opinion and same is not sustainable in the case of reassessment u/s 147 of the Act. 3(i) That on facts and circumstances of the case

DCIT, Circle- 62(1), New Delhi vs. Paveljeet Singh Ruppal, Delhi

In the result, the appeal of the Revenue is dismissed

Bench: Shri Anil Chaturvedi & Shri Amit Shukla

disallowed u/s 36(l)(iii) of the Act. 4.4.1 From the above sequence of events, it is clear that there is a change of opinion as far as the disallowance of interest u/s 36(l)(iii) of the Act, is concerned in this case. In the original assessment proceedings ... reopened the assessment on the same issue. This flip flop on the part of the AO is nothing but mere change of opinion and there is nothing on record to show that any income has escaped assessment due to any failure on the part of the appellant. 4.4.2 In this

Garg Zevar Palace Pvt. Ltd., New Delhi vs. ITO Ward-1(3), Faridabad

In the result, the appeal of the assessee is allowed

Bench: Sh. Bhavnesh Sainidr. B. R. R. Kumar(Through Video Conferencing) Ita No. 9542/Del/2019 : Asstt. Year : 2010-11 Garg Zevar Palace Pvt. Ltd., Vs Income Tax Officer(E), C/O Kapil Goel, Adv., Ward-1(3), F-26/124, Sector-7, Rohini, Faridabad, Haryana New Delhi-110085 (Appellant) (Respondent) Pan No. Aaccg0565H Assessee By : Sh. Kapil Goel, Adv. Revenue By : Sh. Prakash Dubey, Sr. Dr Date Of Hearing: 20.01.2021 Date Of Pronouncement: 26.03.2021

held that if the AO has failed to perform his statutory duty, he cannot review his decision and reopen on a change of opinion. It has been held that reopening is not an empty formality. There has to be relevant tangible material for the AO to come to the conclusion

Space Chem Engineers Private Limited, Ghaziabad vs. ITO Ward-2(3), Ghaziabad

In the result the appeal filed by the assessee is allowed

Bench: Shri R.K. Pandaasstt. Year 2008-09

that AO should have information in his possession for reasons to believe that income chargeable to tax has escaped assessment and mere change of opinion cannot become per se reason to reopen the proceedings. The ratio of above said judgment rather validates action of the AO as in this case ... wherein he had information in his possession and it is not a case of change of opinion. The appellant failed to substantiate that the other case laws relied upon by it are factually and materially similar to its own case. Keeping in view above facts and position of law these

M/S. Classic Real Estate Developers Pvt. Ltd., New Delhi vs. DCIT, New Delhi

In the result, both the appeals filed by the assessee are allowed

Bench: Shri R.K. Panda & Ms Suchitra Kamble

assessment has not been framed on the seized pursuant to an action taken under section 132 of the Act but the reassessment and change of opinion has been made as such the order passed is illegal and therefore is liable to be quashed. 2 . The learned CIT (Appeals), erred ... assessment has not been framed on the seized pursuant to an action taken under section 132 of the Act but the reassessment and change of opinion has been made as such the order passed is illegal and therefore is liable to be quashed. 2 . The learned CIT (Appeals), erred

Kiran Kumar HUF, Rewari vs. ITO, Ward- 1, Rewari

Accordingly, Ground Nos. 1 to 1.3 taken together are allowed

Bench: Shri Anil Chaturvedi & Shri Kuldip Singh(Through Video Conference)

Appeals) has further erred both in law and on facts in failure to appreciate that, issuance of notice u/s 148 merely amounted to change of opinion as original assessment was completed u/s 143(3) and, no tangible material surfaced after the completion of assessment and, therefore notice was illegal

Ram Kandoi, Delhi vs. ITO, Ward- 35(2), New Delhi

In the result, appeal of the assessee is partly allowed

Bench: Sh. Anil Chaturvedi & Sh. Amit Shukla(Through Video Conferencing) Assessment Year : 2009-10 Ram Kandoi Vs. Ito, 27, 1St Floor, Ward – 35(2), Bunglow Road, Kamla New Delhi Nagar, New Delhi-110007 Pan : Agfpk 5089 G (Appellant) (Respondent) Assessee By --None-- Revenue By Shri Govind Singhal, Sr. Dr Date Of Hearing: 16/02/2021 Date Of Pronouncement: 16/02/2021 Order Per Amit Shukla, Jm:

been assessed u/s 143(3) in detail but the Ld. Assessing Officer has re- opened the case under section 147 based on mere change of opinion & on the Ram Kandoi vs. ITO A.Y. 2009-10 3 basis of Audit objections. Hence, notice issued u/s 148 is null & void as assessment ... cannot be reopened due to change in opinion. 4. Based on facts and circumstances of the case and in law, the Hon’ble Commissioner of Income Tax (Appeals) - 12, New Delhi ignored the facts on record, unjustifiably disallowed the interest expense of the assesses amounting

Madhu Apartment Pvt. Ltd., Delhi vs. ITO, Ward- 16(1), New Delhi

In the result, appeal of the Assessee allowed

Bench: Shri Bhavnesh Saini & Shri B.R.R. Kumar

held that if the AO has failed to perform its statutory duty, he cannot review his decision and reopen on a change of opinion. The reopening is not an empty formality. There has to be relevant tangible material for the AO to come to the conclusion that there is escapement

Madhu Apartment Pvt. Ltd., Delhi vs. ITO, Ward- 16(1), New Delhi

In the result, appeal of the Assessee allowed

Bench: Shri Bhavnesh Saini & Shri B.R.R. Kumar

held that if the AO has failed to perform its statutory duty, he cannot review his decision and reopen on a change of opinion. The reopening is not an empty formality. There has to be relevant tangible material for the AO to come to the conclusion that there is escapement

Gaurang Products Pvt. Ltd, Delhi vs. ITO Ward-11(3), New Delhi

In the result, appeal of the Assessee allowed

Bench: Shri Bhavnesh Saini & Shri B.R.R. Kumar

Gaurang Products Pvt. Ltd., Delhi. truly and fully all material facts necessary for assessment. Thus, the reopening have been done merely on change of opinion which is bad in law. In support of his contention, he has relied upon Judgment of the Hon’ble Supreme Court in the case ... thus taking a view/ forming an opinion. Therefore, in these circumstances, the reasons in support of the impugned notice proceed on a mere change of opinion and therefore would be completely without jurisdiction in the present facts. Accordingly, the impugned notice dated 27 March 2019 is quashed and set-aside

Mr. Abhisar Sharma, Noida vs. DCIT, New Delhi

In the result, the appeal filed by the assessee is allowed

Bench: Shri R.K. Panda & Ms Suchitra Kambleassessment Year: 2005-06 Mr. Abhisar Sharma, Vs Dcit, B-602, Plot No.F-2, Circle-64(1), The Crescent, B-Block, Room No.314, Sector-50, Pratyakshkar Bhawan, Noida. Civic Centre, New Delhi. Pan: Aigps3840N (Appellant) (Respondent) Assessee By : Shri Gautam Jain, Advocate & Shri Lalit Mohan, Ca Revenue By : Shri J.K. Mishra, Cit-Dr. Date Of Hearing : 12.01.2021 Date Of Pronouncement : 27.01.2021 Order Per R.K. Panda, Am: This Appeal Filed By The Assessee Is Directed Against The Order Dated 30Th March, 2015 Passed U/S 263 Of The It Act By The Pcit-22, Delhi, Relating To Assessment Year 2005-06. 2. Facts Of The Case, In Brief, Are That The Assessee Is An Individual & Filed His Return Of Income On 22Nd July, 2005 Declaring Income Of Rs.9,00,355/-. The Assessee In The Return Of Income Had Declared Income From Salary At Rs.9,81,964/- & Loss From House Property At Rs.81,609/-. The Return Was Processed U/S 143(1) Of The Act On 4Th July, 2006 At The Same Income. Subsequently, The Case Of The Assessee Was Reopened By Issue Of Notice U/S 148 Of The Act Dated 27Th March, 2012 After Obtaining Prior Approval Of The Addl. Cit, Range-7, New Delhi, Vide His Letter No.526 Dated 27Th March, 2012. The Ao Completed The Assessment U/S 147/143(3) On 28Th March, 2013, Determining The Income Of The Assessee At Rs.11,03,270/- As Against The Returned Income Of Rs.9,00,355/- Wherein He Made The Following Additions:-

Therefore, the assessee’s plea that the findings in the show cause notice have already been examined and are in the ambit of “change of opinion” does not appear to be substantiated. (12)(E) Issue of ESOP As against the submissions made by the assessee, the Assessing Officer

Addl. CIT, New Delhi vs. M/S. Ircon International Ltd., New Delhi

In the result, the appeal of the Revenue is accordingly dismissed

Bench: Shri Amit Shukla & Shri O.P. Kant[Through Video Conferencing]

jurisdiction to reopen the assessment. It is at the next stage that the question, whether the reopening of assessment amounts to “review” or “change of opinion” arises. In other words, if there is no “reasons to believe” based on new, “tangible materials”, then the reopening amounts to an impermissible review ... failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to reopen assessments 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

Hanish Singla, Faridabad vs. ITO Ward - 1(3), Faridabad

In the result, I set aside the orders of the authorities below and quashed the reopening of the assessment

Bench: Shri Bhavnesh Saini

stage AO considered the issue of claim of deduction on account of interest to the banks and others and as such, on mere change of opinion AO could not have reopened the assessment. Thus, the omission of the AO to make disallowance of the full interest now is not permissible

Kulbhushan Khosla vs. Commissioner of Income Tax

The appeal is allowed but, in the facts and circumstances of the case,

33/2014 Page 9 of 10 any adverse material, the reopening of the assessment was at best due to change of opinion of the AO that some income had escaped assessment. This was impermissible under Section 147 of the Act. 20. As noted by the decision of this court

Commissioner of Income Tax vs. Visisth Chay Vyapar Ltd

power to re-assess. But re-assessment has to be based on fulfilment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat ... concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons

Commissioner of Income Tax vs. Vishsht Chay Vyapar Ltd

power to re-assess. But re-assessment has to be based on fulfilment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat ... concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons