ORDER

The writ on hand is filed, questioning the legal validity of the notice issued under Section 148 of the Income Tax Act [hereinafter referred to as the 'Act'] and the consequential order passed, disposing of the objections filed by the petitioners.

2. The petitioner is engaged in the manufacture of sale of catalysts coverers to automobile manufactures in India. The petitioner had filed a return of income for the Assessment Year 2011-12 and filed revised return also. The first respondent, after perusal of the details of payments, made to BASF USA and forex loss in respect of forward contracts and completed the assessment by making a disallowance in respect of payments made to BASF USA and no addition in respect of the Forex Loss.

3. The learned counsel for the petitioner made a submission that the petitioner has submitted all the relevant books of accounts pertaining to the Assessment Year and provided all informations sought for. Accordingly, the assessment order has been passed. While so, the first respondent issued a notice under Section 148 of the Act on 29.03.2018 with an allegation that the income of the petitioner has escaped assessment. The petitioner filed a return of income in response to the notice and requested for furnishing of reasons for reopening of assessment. The reasons were furnished and objections were filed and thereafter, the objection was disposed of by the first respondent and challenging the said disposal order, the present writ petition is filed.

4. The learned counsel appearing on behalf of the writ petitioner mainly contended that reopening of assessment is perverse in the present case as there is no new tangible materials available for the Assessing Officer to invoke the powers conferred under Section 147 of the Act. It is a case of change of opinion, in view of the fact that the issues raised in the reason for reopening were already adjudicated elaborately by the Assessing Officer and an assessment order was passed. Thus, in the absence of fresh materials on record, the first respondent has no jurisdiction to reopen the assessment.

5. The learned counsel for the petitioner referred the Appellate order passed by the Commissioner of Income Tax (Appeals) [in short 'CIT(A)'] dated 31.01.2018 and drawn the attention of this Court that regarding disallowances with reference to the Assessment Year 2011-12, adjudications were made. The Appellate authority considered those facts and details and made a finding. Against which, the Revenue filed an appeal before the Income Tax Appellate Tribunal [in short 'ITAT'] and the said appeal is pending. This being the factum, the issues adjudicated and pending in appeal cannot be a ground for reopening of assessment under third proviso to Section 147 of the Act. Any matter, which are the subject matter of any appeal, cannot be subjected to reassessment. Thus, the initiation of proceedings under Section 147 is in violation of third proviso to Section 147 of the Act.

6. The learned counsel for the petitioner, reading the reasons, furnishing for reopening of assessment, contended that the said reasons were adjudicated before the Assessing Officer and further, subject matter of appeal, which is pending before the ITAT. For all these reasons, the very reason for reopening is untenable and in violation of third proviso to Section 147 of the Act and thus, the impugned orders are liable to be set aside.

7. The learned counsel for the petitioner further contended that all the merits relatable to the reasons furnished for the purpose of reopening of assessment for the Assessment Year 2011-12 were completely adjudicated and the respondents could not able to establish that any new fresh materials, which available on record to invoke Section 147 of the Act and thus, the actions initiated are untenable.

8. The learned Junior Standing counsel disputed the said contentions by stating that the reasons furnished for reopening of assessment is no way connected with the subject, which was