A mere change of opinion would not justify the AO in seeking a recourse to the powers u/s 147 (of Income Tax Act, 1961) and 148 (of Income Tax Act, 1961) unless there is tangible material before the AO to prove that income chargeable to tax has escaped assessment.

Held The decision of this Court in the case of the assessee for the AY 2004-05 holds that a mere change of opinion would not justify the AO in seeking a recourse to the powers u/s 147 (of Income Tax Act, 1961) and 148 (of Income Tax Act, 1961) unless there is tangible material before the AO to prove that income chargeable to tax has escaped assessment. This Court further held, while allowing the petition, during the course of the assessment proceedings, that the AO brought his mind to bear upon the questions involved and there was absence of tangible material on the basis of which assessment could have been reopened. (Para 14) In the present case the very same AY was under consideration whereas this Court has already taken a view in such assessee's case. There was no warrant for issue of further notice. It is evident that this has occasioned only as a change of opinion and an afterthought and in any event, the reopening sought to be effected is beyond the period of 4 years. In CIT v/s. Kelvinator of India Ltd., it has been held by the Supreme Court that even within the period of 4 years there has to be tangible material on the basis of which assessment can be reopened. (Para 15) Perusal of such judgment in the case of the assessee itself reveals that it pertains to AY 2004-05 and in view of the decision of this Court in the case of the assessee for such AY 2004-05, Income Tax Appeal (L) No.2160 of 2010 came to be dismissed. What is material to note is that the affidavit in reply admits of the fact that the reasons for reopening were based on the material available on record (emphasis supplied). Even otherwise, perusal of the impugned order reveals that the objections raised by the appellant were on two grounds viz. that the AO could not have had reason to believe that income chargeable to tax had escaped assessment and secondly that the assessment had to be reopened only on account of change of opinion. While dealing with the said two, the Revenue concluded in paragraph 12 and 13 of the impugned order that it is upon verification of the case records (emphasis supplied) that the claim for unabsorbed depreciation of Rs.17,91,09,548/- was found to have been (allegedly) wrongly claimed and that the reasons recorded are not based on any suspicion but on a solid foundation of law and the facts and placed reliance on the decision of the Supreme Court in the case of Rajesh Jhaveri Stock Brokers Pvt. Ltd. (2007) 291 ITR 500 in support of the rejection of objections. (Para 16) Therefore, considering such facts and circumstances of the case and the decision of High Court in the case of very assessee for the same AY, there is no justification for reopening the assessment. (Para 17)