Rano Jain, A.M.:— The appeal filed by the assessee is directed against the order of learned Commissioner of Income Tax (Appeals), Chandigarh dated 8.1.2007, relating to assessment year 1997-98.

2. Briefly, the facts of the case are that assessment in this case was completed under section 143(3) of the Income Tax Act, 1961 (in short ‘the Act’) on 31.12.1999 at a total income of Rs. 9,62,84,213/- and capital gains of Rs. 22,93,000/-. A deduction under section 80-I of the Act, amounting to Rs. 2,59,42,908/- was allowed to the assessee. Subsequently, the Assessing Officer noticed from the documents furnished by the assessee that it was not eligible for deduction under section 80-I of the Act and Rs. 2,59,42,908/- was wrongly allowed at the time of original assessment. The Assessing Officer issued a notice under section 148 of the Act dated 20.3.2002 on the basis of following reasons recorded:

The assessment in this case was completed u/s 143(3) on 31.12.99. Deduction u/s 80-1 amounting to Rs. 2,59,42,908/- was allowed to the assessee. Subsequently, it has been noticed from the documents furnished by the assessee that it was not eligible, for deduction u/s 80-1 of the Income Tax Act. Therefore, deduction of Rs. 2,59,42,908/- was wrongly allowed at the time of assessment u/s 143(3).

The Annual Report of the assessee company, for the year 1988-89 relevant to the Asstt Year 1989-90 has brought out the following facts:—

1. Commercial operation was, started in the F.Y. 1988-89 before 31.03.89.

2. During three months of commercial productions (January, 89 to March, 1989), the Company was able to produce and supply 345 engines to Punjab Tractors Ltd. for their tractors applications.

3. As per the Profit & Loss-account for the year ended 31.03.1989, the assessee company had shown sales and also claimed manufacturing & other expenses. Movement in stock of engines and work-in-progress is also reflected.

4. Note No. H in Schedule M gives live particulars in respect of goods manufactured. This Note clearly states that 346 Engines were produced before 31.03.1989. Para 12 gives the particulars of sales which shows that 345 Engines were sold.

Thus it is clear that the manufacturing/production of Articles or Things (which are Engines in this case) started ii the period which is relevant for A.Y. 1989-90. Hence, the initial year for the purposes of deduction u/s 80-1 is A.Y. 1989-90. Therefore, the assessee was entitled to deduction u/s 80-I from the A.Y. 1989-90 and seven succeeding Asstt years ending with the AY 1996-97. For the AY 1997-98, the assessee was not entitled to any deduction u/s 80-I of the Income-Tax-Act. Therefore, an amount of Rs. 2,59,42,908/- has been wrongly allowed as deduction u/s 80-I. Considering the above facts & circumstances of the case, I am of the opinion that income chargeable to tax, amounting to more than Rs. One Lakh, has escaped assessment for the A.Y. 1997-98. This income of the assessee needs to be re-assessed.”

3. During the reassessment proceedings, the assessee filed a Civil Writ Petition before the Hon'ble Punjab & Haryana High Court challenging the proceedings initiated under section 148 of the Act. The said Writ Petition was dismissed by the Hon'ble Punjab & Haryana High Court vide order dated 16.8.2002. The assessee filed an S.L.P. No. 24719 of 2002 before the Hon'ble Supreme Court and on the date of hearing 3.3.3002, the Hon'ble Supreme Court ordered as under:

“In the meantime assessment may be completed and the final order passed but it shall not be given effect to without leave of the Court”.

4. In view of the above, the Assessing Officer went ahead with the assessment proceedings. During the assessment, the assessee made elaborate submissions to the effect that the assessee company began to manufacture engines on a commercial basis only w.e.f. financial year 1989-90 relevant to the assessment year 1990-91 and accordingly, it claimed deduction under section 80-I of the Act first time in assessment year 1990-91 and for seven assessment years immediately succeeding that year. Therefore, it was eligible to deduction under section 80-I of the Act in the relevant assessment year also. As regards assessment year 1989-90, it was emphasized that no manufacturing operations were carried out in financial year 1988-89 and commercial production of engines started only during financial year 1989-90, therefore, it was pleaded that the first year for claim of deduction under section 80-I of the Act, is to be taken as assessment year 1990-91. However, rejecting all these contentions of the assessee, the Assessing Officer disallowed the claim of deduction under section 80-I of the Act, amounting to Rs. 2,62,28,895/-, treating assessment year 1989-90 as the first year of deduction under section 80-I of the Act.

5. Before the learned CIT (Appeals), elaborate submissions were made, both on the legality of reopening under section 147 of the Act as well as on the merits of the case. The submissions of the assessee with regard to the legal issue are reproduced in the order of the learned CIT (Appeals) at pages 15 to 50, whereby reliance was placed on a plethora of judgments from various High Courts as well as that of the Supreme Court. The crux of the argument of the assessee was that the Assessing Officer has issued notice under section 148 of the Act, after the perusal of same facts and evidences on record, for withdrawing the said claim for assessment year 1997-98, therefore, it was nothing but mere change of opinion and review of the whole record of the last eight years and goes in the foundational aspect of the dispute. Even after reproducing the submissions of the assessee, the learned CIT (Appeals) preferred not to adjudicate the legal issue raised by the assessee.

6. As regards the merits, the assessee reiterated the submissions made before the Assessing Officer. The learned CIT (Appeals) allowed the appeal of the assessee on the merits of the case and deleted the disallowance of deduction under section 80-I of the Act, made by the Assessing Officer.

7. Aggrieved by this, the Department has come in appeal before us, raising the following grounds of appeal:

“1. On the facts and circumstances of the case and in law, the Ld.CIT(A) vide his order dated 08.01.2007 in appeal No. 65/P/03-04 has erred in allowing deduction u/s 80-1 of the I.T. Act, 1961.

2. On the facts and circumstances of the case and in law the Ld. CIT(A) erred in holding that assembly of the engine is not manufacturing for the purpose of claiming deduction u/s 80-1 of the Act.

3. On the facts and circumstances of the case and in law, the order of the CIT(A) is perverse in holding that regular or commercial operation had not begun during the relevant previous year and as such the first assessment year in which the assessee could claim deduction u/s 80-1 was Assessment Year 1990-91.

4. On the facts and circumstances of the case and in law, the order of the CIT(A) is perverse in holding that the claim of deduction u/s 80(1) is allowable to assessee keeping in view the fact that the claim of the assessee for A.Y. 1997-98 is not tenable as A.Y. 1997-98 is the 9th year of commercial production of the assessee company and not 8th year of commercial production and that 1st year of commercial production of the assessee company was A.Y. 1989-90 and not A.Y. 1990-91.

5. On the facts and circumstances of the case the Ld. CIT has failed to appreciate the fact stated in the Director's report for the period ending 31.03.1989 that “during the three months of commercial operation, the company was able to produce any supply 345 engines”. The engines have been sold for Rs. 59.23 lacs during the relevant year.

6. It is prayed that the order of the Ld. CIT(A) be cancelled and that the Assessing Officer may be stored.

7. The appellant craves leave to add or amend any grounds of appeal before the appeal is heard or disposed off.”

8. At the time of hearing before us, at the outset, it was brought to our notice that after the order of the learned CIT (Appeals), the Hon'ble Supreme Court in Civil Appeal No. 8756 of 2003 has directed the I.T.A.T. to examine the issue of validity of notice under section 148 of the Act dated 20.3.2002 in the pending appeal No. ITA 304/Chd/2007. A copy of the order of the Hon'ble Supreme Court was also brought on record.

9. From the perusal of the order of the Hon'ble Supreme Court, we observe that at the end of the order, the Hon'ble Supreme Court observes as under:

“During the pendency of this Civil Appeal, we are informed that against the order of the Assessing Officer reopening the assessment, the assessee herein had preferred an Appeal to CIT (A). By his order dated 8th January, 2007 in Appeal No. 65/P/03-04, the CIT(A) allowed deduction under Section 80-1 for the Assessment Year 1997-98 on the ground that assembling of engine did not amount to manufacture for the purposes of claiming deduction under Section 80-1 of the Income Tax Act, 1961. Against this decision of CIT(A), we are informed that the Department has preferred Income Tax Appeal No. 304/CHD/2007 before the Income Tax Appellate Tribunal, Chandigarh. That Appeal is pending as of date. We are informed that arguments stand concluded. However, it appears that the CIT (A) did not give the finding on the validity of the reopening of the assessment.

In the above circumstances, we are of the view that ends of justice would be sub-served if we direct the Income Tax Appellate Tribunal, Chandigarh, to also examine this narrow issue regarding the validity of the notice dated 20th March, 2002 in the pending Appeal, bearing No. ITA 304/CHD/2007.

[emphasis supplied]

The interim orders passed by this Court during the pendency of this Civil Appeal will continue till the disposal of the pending Appeal by the Tribunal.”

10. We also observe that since the present appeal is that of the Department, the assessee has also filed an application under Rule 27 of the I.T.A.T. Rules, requesting to adjudicate the issue of validity of notice under section 148 of the Act also in view of the above-said order of the Hon'ble Supreme Court.

11. On perusal of the order of the Hon'ble Supreme Court, we are inclined to adjudicate the issue of validity of reopening by issue of notice under section 148 of the Act, first.

12. The learned counsel for the assessee made lengthy arguments challenging the validity of notice under section 148 of the Act. In this regard, she made manifold arguments. First limb of her arguments was that no new facts or new material coming into his possession, on the basis of same set of documents which were there before him at the time of original assessment, reopening cannot be done by the Assessing Officer. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Commissioner Of Income-Tax, Delhi-Ii. v. Kelvinator Of India Ltd. (2010) 320 IT 561 (SC) to the effect that the Assessing Officer has power to reopen a case only on having some tangible material coming to his possession after the assessment. Reopening on the basis of same material amounts to change of opinion and reopening on the basis of mere change of opinion is not permitted. Reliance was also placed on the judgment of Punjab & Haryana High Court in the case of CIT v. ITW India Ltd. (2015) 377 ITR 195 (P & H) and that of Delhi High Court in the case of Satnam Overseas Ltd. v. Addl. CIT (2010) 329 ITR 237 (Del).

13. Second limb of her arguments was that once on the same issue rectification having been done under section 154 of the Act, the same issue cannot be raked up again in the garb of reopening under section 148 of the Act. Our attention was invited to certain pages of the Paper Book filed by the assessee. A notice under section 154 of the Act dated 24.11.2000 was issued to the assessee stating that “claim under section 80-I of the Income Tax Act, 1961 claimed by you has been wrongly allowed by the Assessing Officer for the 9th year amounting to Rs. 2,59,42,908/- needs to be withdrawn. An order dated 23.1.2001 was passed under section 154 of the Act, withdrawing the deduction under section 80-I of the Act. It was also stated that against this order under section 154 of the Act, the assessee filed an appeal before the CIT (Appeals), wherein the appeal was decided in favour of the assessee. The reason given by the CIT (Appeals) was that since the issue of section 80-I can be decided only through a long drawn process, the same cannot be a matter of rectification under section 154 of the Act. It was stated at the Bar that the Department has not filed appeal against the said order before the I.T.A.T. In view of all this, it was submitted that an issue once having been a matter of section 154, cannot again be a matter of reopening under section 147 of the Act. Reliance in this regard was placed on the judgment of Hon'ble Punjab & Haryana High Court in the case of Mitsubishi Electric Automative India (P) Ltd. v. UOI (2015) 231 Taxman 343 (P & H). Another argument raised by the learned counsel for the assessee was that the order of the learned CIT (Appeals) against the order under section 154 of the Act having been merged with the order of the Assessing Officer and in the background of the fact that the Department has not filed any appeal before the I.T.A.T., the issue of deduction under section 80-I of the Act has got settled and the same cannot again be reopened under section 147 of the Act.

14. Finally, In the background of all these, it was stated that in view of these facts, at best, it can be a matter of revision by Commissioner of Income Tax under section 263 of the Act and not of reopening under section 148.

15. The learned D.R., in reply submitted that this is not a matter of reopening after four years from the end of relevant assessment year. Therefore, not a case coming under first proviso to section 147 of the Act. Therefore, the reopening is legal in such a case. Further, any proceedings made under section 154 of the Act cannot be a hindrance for reopening under section 148 of the Act. It was also argued that in view of Explanation-1 to section 147 of the Act, only disclosure in the Balance Sheet cannot be said to be full and true disclosure. Reliance was placed on the judgment of Hon'ble Punjab & Haryana High Court in the case of Jawand Sons v. CIT(A) (2010) 326 ITR 39 (P & H), whereby it was held that the assessee having wrongly allowed deduction under section 80-IB in respect of duty drawback and DEPB incentives overlooking the fact that these incentives do not fall within the expression “profits derived from industrial undertaking” is section 80-IB of the Act. Reassessment proceedings were rightly initiated notwithstanding the fact that there was full disclosure of material facts.

16. We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. From the perusal of reasons recorded as well as the material on record, we observe that the Assessing Officer has not come across any tangible material in his notice for formation of belief. Time and again in his reasons recorded, he is referring to the same record which was available to him at the time of original assessment. In the very second sentence of the reasons recorded, he mentioned that ‘subsequently, it has been noticed from the documents furnished by the assessee’. No reference to any material, information or any such thing brought to him after the assessment has been mentioned. Even, at the time of hearing before us, no such mention was made. Further, on perusal of Assessing Officer's order dated 31.12.1999, passed under section 143(3) of the Act, we see that the issue of deduction under section 80-I of the Act was quite open before him. He has raised many queries in this regard which were duly replied by the assessee together with the details and evidences. In fact, in an order running into seven pages, apart from the first two pages, the Assessing Officer has devoted his whole order discussing the issue of deduction under section 80-I of the Act. In conclusion, he has also disallowed a part of deduction under section 80-I of the Act claimed by the assessee. In view of all the above, it is quite apparent that the issue of deduction under section 80-I of the Act was well within the reach of the Assessing Officer at the time of original assessment. He has applied his mind to the issue while finalizing the assessment. After the assessment he has not come across any new material to tinker with the issue of deduction under section 80-I of the Act.

17. In the background of the fact that the Assessing Officer has reopened the case only on the basis of material already on record, to which he had already applied his mind once, now we proceed to discuss whether the provisions of section 147 of the Act r.w.s. 148 are still applicable to the present case or not.

18. It is a trite law by now, that the only condition present with the Assessing Officer for reopening in the ‘reason to believe’ that income has escaped assessment. The phrase ‘reason to believe’ has been defined in the Landmark judgment of the Hon'ble Apex Court in the case of Sheo Nath Singh v. ACIT (1971) 82 ITR 147, in following words

“10. There can be no manner of doubt that the words “reason to believe” suggest that the belief must be that of an honest and reasonable person based upon reasonable ground and that the ITO may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The ITO would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material or relevant to the belief required by the section. The Court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the Court.”

19. This proposition has been affirmed in a number of other decisions of the Hon'ble Supreme Court both prior to it and also later on, in different words. There can be no dispute that the main ingredient for initiating these provisions are presence of material and live link between the material and belief formed by he Assessing Officer, which makes the ‘reasonable belief’ as propounded in the provisions itself. However, as stated above, these reasons to believe on the basis of reasonable belief should be honest and true and if on the change of opinion the reopening is permitted, this will amount to review of the order, the power of which is not available to the Assessing Officer under the Income Tax Act. The reopening on the basis of ‘change of opinion’ will lead to review of order, this proposition has been explained in the judgment of the Hon'ble Supreme Court in the case of Kelvinator of India (supra) in following words:

“4. On going through the changes, quoted above, made to s. 147 of the Act, we find that, prior to Direct Tax Laws (Amendment) Act, 1987, reopening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the AO to make a back assessment, but in s. 147 of the Act’(w.e.f. 1st April, 1989), they are given a go by and only one condition has remained, viz., that where the AO has reason to believe that income has escaped assessment, confers jurisdiction to reopen the assessment. Therefore, post 1st April, 1989, power to reopen is much wider. However, one needs to give a schematic interpretation to the words “reason to believe” failing which, we are afraid, s. 147 would give arbitrary powers to the AO to reopen assessments on the basis of “mere change of opinion”, which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to reassess. The AO has no power to review; he has the power to reassess. But reassessment has to be based on fulfillment of certain pre-condition and if the concept of “change of opinion” is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place. One must treat the concept of “change of opinion” as an in-built test to check abuse of power by the AO. Hence, after 1st April, 1989, AO has power to reopen, provided there is “tangible material” to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to s. 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, Parliament not only deleted the words “reason to believe” but also inserted the word “opinion” in s. 147 of the Act. However, on receipt of representations from the companies against omission of the words “reason to believe”, Parliament re-introduced the said expression and deleted the word “opinion” on the ground that it would vest arbitrary powers in the AO. We quote hereinbelow the relevant portion of Circular No. 549, dt. 31st Oct., 1989 [(1990) 82 CTR (St) 1], which reads as follows:

“7.2 Amendment made by the Amending Act, 1989, to re-introduce the expression ‘reason to believe’ in s. 147.— A number of representations were received against the omission of the words ‘reason to believe’ from s. 147 and their substitution by the ‘opinion’ of the AO. It was pointed out that the meaning of the expression, ‘reason to believe’ had been explained in a number of Court rulings in the past and was well settled and its omission from s. 147 would give arbitrary powers to the AO to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended s. 147 to reintroduce the expression ‘has reason to believe’ in place of the words ‘for reasons to be recorded by him in writing, is of the opinion’. Other provisions of the new s. 147, however, remain the same.”

20. Further, an argument put-forth at the Bar was that the Assessing Officer came in possession of the said escapement of income from the perusal of annual report of the company. This situation, whether amounts to ‘change of opinion’ has been explained by the Delhi High Court, Full Bench in the case of Commissioner Of Income-Tax, Delhi-Ii. v. Kelvinator Of India Ltd. (2002) 256 ITR 1, this is the same case which was later on affirmed by the Hon'ble Supreme Court, as referred hereinabove. Since the argument has been dealt with very clearly in this case, we are referring to the same. At paras 22 and 23, Hon'ble Delhi High Court says as under:

“22. We are unable to agree with the submission of Mr. Jolly to the effect that the impugned order of re-asssessment cannot be faulted as the same was based on information derived from the tax audit report. The tax audit report had already been submitted by the assessee. It is one thing to say that the AO had received information from an audit report which was not before the ITO, but it is another thing to say that such information can be derived by the material which had been supplied by the assessee himself.

23. We also cannot accept submission of Mr. Jolly to the effect that only because in the assessment order, detailed reasons have not been recorded on analysis of the materials on the record by itself may justify the AO to initiate a proceeding under s. 147 of the Act. The said submission is fallacious. An order of assessment can be passed either in terms of sub-s. (1) of s. 143 or sub-s. (3) of s. 143. When a regular order of assessment is passed in terms of the said sub-s. (3) of s. 143 a presumption can be raised that such an order has been passed on application of mind. It is well known that a presumption can also be raised to the effect that in terms of cl. (e) of s. 114 of the Indian Evidence Act the judicial and official acts have been regularly performed. If it be held that an order which has been passed purportedly without application of mind would itself confer jurisdiction upon the AO to reopen the proceeding without anything further, the same would amount to giving premium to an authority exercising quasi judicial function to take benefit of its own wrong.”

21. Therefore, in view of the above, this argument of the Revenue fails.

22. The issue that in such cases, where same income has been in fact escaped assessment and the Assessing Officer notices the same after the assessment only, the only remedy available to him is to reopen the case under section 148 of the Act, the Hon'ble Delhi High Court in the case of Kelvinator of India (supra) explained the same as under:

“Let us now consider the decision of the Division Bench of Gujarat High Court in the said case, where it was held:

“It will thus, be seen that in the proceedings taken under s. 147, the AO may make an assessment or reassessment or recomputation, as the case may be. The word ‘assess’ refers to a situation where the assessment was not made in the normal manner while the word ‘reassess’ refers to a situation where an assessment is already made, but it is sought to be reassessed on the basis of this provision.

In cases where the AO has not made an assessment of any item of income chargeable to Tax while passing the assessment order in the relevant assessment year, it cannot be said that such income was subjected to an assessment. In the assessment proceedings, the Assessing Officer would ascertain on consideration of all relevant circumstances the amount of tax chargeable to a given taxpayer. The word ‘assessment’ would mean the ascertainment of the amount of taxable income and of the tax payable thereon. In other words, where there is no ascertaining of the amount of taxable income and the tax payable thereon, it can never be said that such income was assessed. Merely because during the assessment proceedings the relevant material was on record or could have been with due diligence discerned by the AO for the purpose of assessing a particular item of income chargeable to tax, it cannot be inferred that the AO must necessarily have deliberated over it and taken it out while ascertaining the taxable income or that he had formed any opinion in respect thereof. If looking back it appears to the AO, (albeit within four years of the end of the relevant assessment year) that a particular item even though reflected on the record was not subjected to assessment and was left out while working out the taxable income and the tax payable thereon, i.e., while making the final assessment order, that would enable him to initiate the proceedings irrespective of the question of non-disclosure of material facts by the assessee.”

13. We are, with respect, unable to subscribe to the afore-mentioned view. If the contention of the Revenue is accepted the same, in our opinion, would confer an arbitrary power upon the AO. The AO who had passed the order of assessment or even his successor officer only on slightest pretext or otherwise would be entitled to reopen the proceeding. Assessment proceedings may be furthermore reopened more than once. It is now trite that where two interpretations are possible, that which fulfils the purpose and object of the Act should be preferred.

14. It is well settled principle of interpretation of statute that entire statute should be read as a whole and the same has to be considered thereafter chapter by chapter and then section by section and ultimately word by word. It is not in dispute that the AO does not have any jurisdiction to review its own order. His jurisdiction is confined only to rectification of mistake as contained in s. 154 of the Act. The power of rectification of mistake conferred upon the ITO is circumscribed by the provisions of s. 154 of the Act. The said power can be exercised when mistake is apparent. Even mistake cannot be rectified where it may be a mere possible view or where the issues are debatable. Even the Tribunal has limited jurisdiction under s. 254(2) of the Act. Thus, when the AO or Tribunal has considered the matter in detail and the view taken is a possible view the order cannot be changed by way of exercising the jurisdiction of rectification of mistake.

15. It is a well settled principle of law that what cannot be done directly cannot be done indirectly. If the ITO does not possess the power of review, he cannot be permitted to achieve the said object by taking recourse to initiating a proceeding of reassessment or by way of rectification of mistake. In a case of this nature the Revenue is not without remedy. Sec. 263 of the Act empowers the CIT to review an order which is prejudicial to the Revenue.”

22. After discussing the issue in detail hereinabove, we are of the view that this is a case of reopening merely on the basis of ‘change of opinion’ which is not permissible in law.

23. In view of the above, we hold that the reopening done by the Assessing Officer under section 147 of the Act is not as per law and quash the order passed by the Assessing Officer.

24. Since we have already quashed the order of the Assessing Officer, we do not find any need to adjudicate the issues on merits.

25. In the result, the issue is allowed in favour of the assessee and the appeal of the Department is dismissed.