Reopening of assessment requires tangible material indicating income has escaped assessment; mere change of opinion is insufficient.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1. Heard learned advocate Mr.Manish J.Shah for the petitioner and learned Senior Standing Counsel Mr.Karan Sanghani for Mrs.Kalpana K.Raval for the respondent.

2. Rule returnable forthwith. Learned Senior Standing Counsel Mr.Karan Sanghani waives service of notice of rule for the respondent.

3. Having regard to the controversy in narrow compass, with the consent of learned advocates for the respective parties, the matter is taken up for hearing.

4. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 27.03.2021, issued under Section 148 of the Income Tax Act, 1961 (for short “the Act”) for reopening of the Assessment for the year 2014-15.

5. The brief facts of the case are that for the Assessment Year 2014-15, the petitioner submitted the return of income on 24.11.2014 computing total income at Rupees NIL.

5.1. The case of the petitioner was selected for scrutiny assessment and notice dated 28.08.2015 under Section 143 of the Act followed by notice dated 08.04.2016 under Section 142(1) of the Act were issued requiring the petitioner to furnish various details stated therein.

5.2. The petitioner was specifically asked to furnish the detailed working of deduction claimed under Chapter VI-A along with justification thereof.

5.3. The petitioner by letter dated 04.05.2016, provided the details called for and after consideration thereof, the Assessing Officer passed an Assessment Order under Section 143(3) of the Act on 13.05.2016.

5.4. The respondent issued a notice under Section 148 of the Act on 27.03.2021 for the year under consideration on the ground that the income has escaped assessment and asked the petitioner to file return.

5.5. In response to the said notice, the petitioner filed return of income on 23.04.2021.

5.6. The respondent provided the reasons recorded for reopening of the assessment along with notice under Section 143(2) of the Act dated 21.05.2021, which reads as under:

“2. This Office is in possession of the information from the records available with the Office along with the material. On perusal of the available records it is seen that the assessee had offered income of Rs. Nil after claiming deduction u/s.80P(2) amounting to Rs.24,51,945/- which includes Rs.7,77,224/- earned as Cooperative Bank FD interest and the same was allowed during assessment. However, on going through the computation of income, it was noticed that the assessee had claimed and was allowed deduction of Rs.7,77,224/- u/s.80P(2)(d) which was irregular. This has resulted into underassessment of income of Rs. 7,77,224/-.

3. On verification of the available records, it is seen that the assessee had claimed and was allowed deduction of Rs.7,77,224/- u/s.80P(2)(d) which was irregular. This has resulted into underassessment of income of Rs.7,77,224/-.

4. A perusal and analysis of the information collected /material availableshows that income has escaped assessment and there is no need for further enquiries u/s. 133(6) to establish the same.

5. On perusal of the available records, it is seen that the assessee had claimed and was allowed deduction of Rs.7,77,224/- u/s.80P(2)(d) which was irregular. This has resulted into underassessment of income of Rs.7,77,224/-.”

6. On the basis of the facts of the case records available with this Office and from the above information, it is prima facie concluded that the assessee had claimed and was allowed deduction of Rs.7,77,224/- u/s 80P(2) (d) which was irregular. This has resulted into underassessment of income of Rs.7,77,224/-.”

5.7. The petitioner raised detailed objections vide letters dated 02.06.2021 and 02.08.2021 in response to the afoesaid reasons which was disposed of by the respondent vide order dated 11.01.2022 justifying the reopening of the assessment.

5.8. Being aggrieved, the petitioner has filed the present petition.

6. Learned advocate Mr.Manish Shah for the petitioner submitted that there