The main legal point established in the judgment is that re-assessment based on a change of opinion is impermissible under the Income Tax Act, and tangible material is required to justify re-opening.

JUDGMENT :

(Neela Gokhale, J.) :

1. Rule. Rule made returnable forthwith. By consent, Petition is taken up for final hearing at the admission stage.

2. Petitioner assails notice dated 30th July 2022 issued under Section 148 of the Income Tax Act, 1961 (“Act”), approval under Section 151 of the Act granted by the Principal Chief Commissioner of the Income Tax (“PCCIT”), Mumbai, communication/letter dated 28th May 2022 seeking explanation and details from Petitioner to facilitate the Jurisdictional Assessing Officer (“JAO”) to pass an order under Section 148A(d) of the Act, Order dated 29th July 2022 passed under Section 148A(d) of the Act for Assessment Year ("AY") 2015-16, notice dated 31st May 2021 under Section 148A(b) of the Act, notice dated 21st April 2021 for AY 2015-16 under Section 148 of the Act.

3. Facts giving rise to the present Petition are that Petitioner, a private company engaged in the business of undertaking real estate projects, sold a plot of land situated at Raigad District to one Regency Nirman Limited by a registered agreement to sell dated 7th October 2011 for a consideration of Rs.18 Crores. The property was valued at Rs.16.50 Crores for the purpose of stamp duty. It was agreed between Petitioner and the purchaser that in case Petitioner was unable to discharge any obligation under the agreement, damages shall be settled. Thus, on non-fulfilment of some obligations on the part of Petitioner, the consideration was reduced by Rs.6 Crores making the consideration payable for the land at Rs.12 Crores. Petitioner e-filed its return of income on 31st March 2017 declaring income of Rs.8,43,58,620/- and booked profits under Section 115JB of the Act at Rs.9,72,27,472/-. An assessment order came to be passed on 26th December 2017 accepting Petitioner's figure of Rs.12 Crores. In the assessment order, the sale of this property and resultant Capital Gains has been elaborately discussed. The submission of Petitioner to the AO in the original assessment proceedings in respect of the sale of land was that Section 50C of the Act was not applicable as the sale consideration of Rs.18 Crores was higher than stamp valuation of Rs.16.50 Crores.

4. Petitioner received notice dated 31st March 2001 under Section 148 of the Act from the Assessing Officer (“AO”) and Petitioner filed return of income in response to the said notice. Petitioner received a copy of recorded reasons and filed its objections to the re-opening. By orders dated 18th November 2021 and 4th January 2022, the objections were disposed by the AO. The AO issued notice dated 10th March 2021 under Section 142(1) of the Act which was responded to by Petitioner on 17th March 2022. Thereafter, Petitioner received a communication dated 28th May 2022 from the AO conveying that pursuant to the order of the Apex Court in the matter of Union of India v. Ashish Agarwal, a copy of the approval under Section 151 of the Act and the reasons recorded prior to the issuance of notice under Section 148 of the Act were being forwarded to it. Petitioner was called upon to respond in support of its claim to enable Respondent to pass an order under Section 148A(d) of the Act.

5. Petitioner filed its objections to the letter dated 28th May 2022 and explained its stand on the sale of the plot of land to Regency Nirman Limited. However, Respondent No.1-Assessing Officer passed an order dated 29th July 2022 under Section 148A(d) of the Act holding that sale consideration offered was Rs.12 Crores was lesser than the stamp duty valuation of Rs.16.50 Crores, inviting applicability of Section 50C of the Act. The order was passed with prior approval of the PCCIT, Mumbai, followed by notice dated 30th July 2022 under Section 148 of the Act. It is this order, approval and consequent notice, which are assailed in the present Petition.

6. Dr. K. Shivaram, Senior Advocate, contends that the AO, in the original assessment order had dealt with in detail the taxability of transaction of sale of the plot of