Reopening of assessment under Section 148 is invalid if based on materials already available during the original assessment, constituting a mere change of opinion without fresh evidence.

JUDGMENT :

Heard Mr. Raju Datta, learned counsel appearing for the petitioner and also heard Mr. S. Chetia, learned counsel assisted by Mr. Koushik Roy, learned counsel appearing for the respondents-revenue.

[2] Petitioner has sought quashing of notice under Section 148 of the Income Tax Act, 1961 vide DIN & Notice No. ITBA/AST/S/148/2020- 21/1032094963(1) dated 31.03.2021 issued by the Deputy Commissioner of Income Tax for the assessment year 2014-2015 and the order dated 21.02.2022 rejecting the objection of the petitioner vide letter No. ITBA/AST/F/17/2021-22/1039954650(1) issued by the Additional/Joint/ Deputy/Assistant Commissioner of Income Tax Department. He also prayed for a direction upon the respondents not to proceed further on the basis of the notice under Section 148 of the Act of 1961 and drop the proceedings after considering the objection dated 21.02.2022. Petitioner also prayed for an interim stay of the impugned notice.

[3] When the matter was taken up earlier before the Co-ordinate Bench of this Court on 29.03.2022 while issuing notices the proceedings initiated against the petitioner under Section 148 of the Income Tax Act 1961 were kept in abeyance. Therefore, the re-assessment proceedings have not been concluded. Respondents filed their counter affidavit on 01.08.2022. When the matter was taken up on 27.06.2023, this Court taking note of the of the fact that the averments in the writ petition have not been specifically answered by the respondents in their counter affidavit directed the respondent No.5 or any officer specifically authorized by him to appear and assist the Court with the relevant assessment records relating to the year 2014-2015 i.e. the subject matter of the impugned notice. The authorized officer thereafter appeared before the Court with the relevant documents.

[4] During the course of hearing on 17.08.2023, learned counsel for the respondent-department had sought to place certain documents from the record and also the un-amended provisions under Sections 149 and 151 of the Income Tax Act, 1961 as existing on 31.03.2021. The respondent- department was, therefore, allowed two weeks' time to bring on record the relevant documents and the relevant provisions of the un-amended Act by way of an additional affidavit. The additional affidavit was filed thereafter on 31.08.2023. However when the matter was again taken up on 28.02.2024, learned counsel for the respondent-revenue, sought to make certain assertions after going through the records of the assessment proceedings. However, no additional affidavit had been filed in respect of the assertions made on facts. Therefore, learned counsel for the respondent-revenue was allowed four weeks' time to file affidavit to bring on record the additional facts. Another additional affidavit had been filed thereafter on 20.05.2024. Earlier, a rejoinder affidavit was filed on behalf of the petitioner to the first counter affidavit on 01.08.2022. Another rejoinder affidavit was filed by the petitioner on 15.09.2023 to the first additional affidavit.

[5] The brief background facts relevant for appreciating the present issue in controversy are hereinafter delineated in short as are borne out from the records of the writ proceedings.

A search and seizure operation was conducted on 23.08.2023 at office premises of Rajarshi Motors Private Limited and also in the residence of one Shri Swapan Kumar Paul during which various books of account and other incriminating documents of the present petitioner, who is the son of said Shri Swapan Kumar Paul were also seized along with other documents pertaining to Swapan Kumar Paul Group of Companies. During such search operation, Shri Swapan Kumar Pal made disclosures of undisclosed income in the hands of the present petitioner. After the search operation was completed, a detailed appraisal report was prepared by the department containing the search details and other details of Shri Swapan Kumar Paul along with eight other assessee