6. We feel that the Writ Petition’, have to succeed because the contentions as raised on behalf of the counsel for the petitioner are well founded. The only reason which has been given seeking re-opening of the assessment for the years 1997-98 and 1998-99 is that suppression of sales have taken place on account of the fact that when average price of the closing stock is multiplied with the quantity of the sales in the year then the value of the sales would be at a higher figure than that as declared by the assessee.
Clearly, there is no new material which is alleged to have come to the notice of the Assessing Officer which has paused him to seek re-opening of the assessment. Admittedly, the reasons given for seeking re-opening of the assessment contains the expression ‘perusal of the case record reveals’ clearly showing that it is on the basis of the same assessment record as was filed by the assessee, during the relevant assessment years and also scrutinized by the Assessing Officer before passing the orders under Section 143(3) is the basis for seeking re-opening of the assessment. Further the new logic, rationale and opinion which has been formed by the < Assessing Officer for seeking rc-opening of the assessment is nothing but a change of opinion and a new approach to the existing facts and material which the Assessing Officer could well have done during. The regular assessment proceedings of the relevant assessment years. Not only this, the rationale/ logic/ reasons given that sale price of stocks during the entire assessment year would remain constant is something which indeed confounds us. It cannot stand to reason that the price of file of paddy/rice/pulses remained constant throughout the year so that on the of an average price of the closing stock the sale price for the entire year comprising of 12 months, 48 weeks and 365 days can be ascertained in that the same would have remained fixed throughout this period. Even assuming that this logic is correct, it was surely an exercise which the Assessing Officer could have done on the basis of materials which he is now presently seeking to do because the same very materials were available to him in the relevant assessment years and merely because the Assessing Officer feels that he has ‘ailed to do what he ought to have done cannot be a valid ground for seeking initiation of re-assessment under sections 147/ 148 of the Act.
So far as the issue of claiming depreciation on tarpaulin is concerned the learned senior counsel has referred to the correspondence specifically entered into in this behalf in the relevant assessment year 1999-2000 and particularly the letter dated 22.2.2002 which specifically mentions a note with respect to the claim of depreciation on tarpaulin- The said note on the claim for depreciation for tarpaulin clearly gives the reason that life of these tarpaulin Covers are subject to elements such as .dust, rain and sun and consequently 100% depreciation is claimed because they get torn on account of frequent use. With regard to the assessment year 2000-01, the learned senior counsel for the petitioner has referred to a specific letter dated 22.3.2002 whereby a specific note with regard to delay in payment of provident fund was given to the Assessing Officer. All the aforesaid arguments and the documents relied upon by the learned counsel for the petitioner along with reasons given for seeking reopening of the assessment under Sections 147/148 of the Act make it more than abundantly clear that in all the aforesaid assessment years the reasons refer not to any concealment of facts whatsoever but in fact reasons given have simply relied upon the record which was already available before the Assessing Officer while completing the assessment proceedings under Section 143(3) of the Act. Not only this, it is quite clear that the very aspect of deduction u/s 80 11110 and Section 80 IA means that entries with respect to claims of deductions towards expenditure whether towards PF/F-SI or the valuation of the stock was very much considered by the Assessing Officer for considering the claim of the ‘assessee under Section 80 IIIIO and Section 80IA in the relevant assessment years. It is not therefore as if any new material has come on record or that there was bulk material and in respect of which some material could not have been considered by Assessing Officer. Surely an obvious thing would have been and in fact has been duly considered by the Assessing Officer such as valuation of stock and allowing of the claim of expenditure/ contribution towards Pf and ESI. Once all these aspects were considered and also ought to have been considered from the obvious material available on record which was duly done by and brought to the notice of the Assessing Officer, we do not feel that there is any scope for reassessment proceedings under Section 147 of the Act by issuing of notice under Section 148 thereof.
7. We may for the purposes of the record state that it was sought to be canvassed for certain years by the counsel for the petitioner with regard to the date of issuing of the notice under Sections 147/148 of the Act and the date of the reasons recorded for re-opening of the assessment and the date of seeking permission to re-open the assessment by the Assessing Officer from the higher authorities that the reasons for re-opening of-the assessment were subsequent to the date of the notice issued for re-opening of the assessment and therefore the notices issued under Sections 147/1 IS must fail as reasons have been recorded subsequently. We are not going into this aspect of the matter because we have agreed with the writ petitioner and granted relief on other grounds as staled above that there was no valid basis for seeking re-assessment under Sections 147/148 of the Act.