Vijay Harishchandra Patel Vs ITO (Gujarat High Court)
As is apparent on a plain reading of the reasons recorded, the very basis for reopening the assessment is that the petitioner had not filed any return of income disclosing such sale of the immovable property valued at Rs. 40,00,000. The record of the case shows that earlier, pursuant to a notice under section 148 of the Act, the petitioner had, in fact, filed return on income disclosing the sale of such immovable property, and the assessing officer after duly applying his mind to the issue had accepted the return of income. Considering the fact that a return of income had been filed disclosing sale of the immovable property, the very foundation on which the reopening is based in the reasons recorded by the assessing officer for reopening the assessment, collapses. Therefore, on the reasons recorded, the assessing officer could not have formed the belief that income had escaped assessment, inasmuch as such belief had been formed on a factually incorrect premise. It is settled legal position, that the reopening of the assessment has to be maintainable on the reasons recorded for reopening the same, and that such reasons cannot be substituted. In the facts of the present case, when the original ground for reopening the assessment does not survive, the assessing officer seeks to proceed further with the assessment on totally different grounds, which is impermissible in law. Moreover, what the assessing officer now seeks to do is to sit in judgment over the assessment framed by his predecessor assessing officer, which again, is not permissible in law.
