Reassessment Without Fresh Tangible Material and Failure

Reassessment Without Fresh Tangible Material and Failure to Comply with Section 148A Is Invalid

Issue

Whether reopening an assessment under Section 147 on an issue thoroughly examined in original assessment proceedings—without any fresh tangible material and without complying with the mandatory Section 148A procedure—is legally valid.

Facts

Original Proceedings (A.Y. 2009-10 & 2010-11): Original assessments were completed under Section 143(3). For A.Y. 2009-10, the Assessing Officer specifically enquired into share application money via Section 142(1) notices, verified bank statements, PANs, confirmations, and shareholder details, and accepted the transactions without making additions under Section 68.
Basis of Reopening: Reassessment proceedings were subsequently initiated for both assessment years on the share application money issue based solely on observations/directions arising from first appellate proceedings for a different assessment year (A.Y. 2012-13).
Procedural Flaws: The AO initially issued a Section 148 notice in March 2021 in the name of a non-existent entity, dropped it, and issued a fresh Section 148 notice in April 2021. However, the AO failed to follow the mandatory procedure prescribed under Section 148A as laid down by the Supreme Court in Union of India v. Ashish Agarwal.

Decision

Impermissible Change of Opinion (In Favour of Assessee): Reopening an issue fully examined during original assessment proceedings without fresh tangible material amounts to a review of the earlier assessment, which is impermissible in law.
Non-Compliance with Section 148A (In Favour of Assessee): Initiating reassessment through a Section 148 notice without adhering to the statutory procedure under Section 148A renders the entire reassessment proceedings void and invalid ab initio.

Key Takeaways

No Review Under Guise of Reopening: In the absence of new, tangible material, an Assessing Officer cannot reopen an assessment on issues already examined and accepted, as Section 147 does not confer power to review.
Mandatory Section 148A Compliance: For notices issued post-April 1, 2021, strict adherence to the procedure under Section 148A (in line with the Ashish Agarwal ruling) is mandatory, and non-compliance invalidates the reassessment.

IN THE ITAT MUMBAI BENCH ‘A’

ACIT

Lupin Investment (P.) Ltd.

Siddhartha Nautiyal, Judicial Member
and Om Prakash Kant, Accountant Member

IT Appeal Nos. 5941, 5952 & 6386 (MUM) of 2026
C.O. Nos. 248 & 255 (MUM) of 2026
[Assessment years 2009-10, 2010-11]

SEPTEMBER 25, 2026

Rajan Vora and Ms. Palak Mehta, CAs for the Appellant. Manoj Kumar, CIT-DR and Surendra Mohan, SR.DR for the Respondent.

ORDER

Om Prakash Kant, Accountant Member.- The captioned appeals by the Revenue and cross-objections by the assessee are directed against two separate orders dated 26th March 2026 and 30th March 2026 passed by the ld CIT(A) for assessment years 2009-10 and 2010-11 respectively. All the appeals and cross objection being connected with one respondent, were heard together and disposed off by way of this consolidated order for sake of convenience and avoid repetition of facts.

2. The learned Departmental Representative(DR) submitted that the appeal in ITA number 5952/Mum/2026 is duplicate appeal for assessment year 2010-11, filed inadvertently in wrong name of respondent, namely, Privilege Health Care Services Private Limited. Accordingly, at the instance of the ld. DR, and there being no objection from the other side, the said appeal is dismissed as withdrawn.

3. Now, we take up the appeal of the Revenue and cross-objection of the assessee for assessment year 2009-10. The relevant grounds raised by the Revenue are reproduced as under:

“1. “On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that the reassessment proceedings under section 147 are on the ground that the issue of share application money had already been examined during original assessment under section 143(3), thereby treating the reopening as a case of change of opinion.

2. On the facts and circumstances of the case and in law, the Ld.CIT(A) erred in holding the lack of DIN and digital signature as serious legal infirmities when the same are curable defects.

3. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in quashing the reassessment proceedings by holding that there was no fresh tangible material, ignoring that the reopening was based on information and directions received from appellate authority i.e. CIT(A).

4. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in allowing the appeal of the assessee on account of adoption of base income at Rs.5.39 Crores ignoring the facts that the AO has computed the assessed income on the basis of records available in the system and relevant assessment orders pertaining to the assessee and its predecessor entity taking into account the amalgamation and continuity of proceedings.

5. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made under section 68 of the IT Act, 1961 at Rs.8,98,00,000/- by accepting the assessee’s explanation without properly appreciating that the assessee failed to discharge the onus of proving genuineness of the said share application money transactions.”

6. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made under section 68 of the IT Act, 1961 at Rs, 8,98,00,000/- by accepting the assessee’s explanation without properly appreciating that the assessee failed to discharge the onus of proving genuineness of the said share application money transactions.”

7. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in allowing the ground of the assessee on charging of interest u/s 234B of the IT Act, 1961 ignoring the facts that the addition made by the AO is sustainable in law and on facts.

8. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the penalty initiated by the AO u/s 271(1)(c) of the IT Act, 1961 ignoring the fact that the Assessment Order was passed in accordance with the provisions of the Act and after due consideration of facts on record.”

4. The grounds raised by the assessee in the cross-objection are reproduced as under:

“Objections to Department’s Appeal

Reassessment proceedings not valid in case of change of opinion

1. erred in objecting to the Ld. CIT(A) order wherein it held that reopening of assessment is invalid on the basis of change of opinion without any new tangible material and without appreciating the fact that the receipt of share application money has been adjudicated by the Assessing Officer during the course of regular assessment proceedings thereby rendering the reassessment proceedings initiated without any new material is bad in law;

Reopening assessment on the basis of borrowed satisfaction:

2. erred in objecting to the Ld. CIT(A) order wherein it is held that reopening the assessment proceedings and passing order under section 143(3) r.w.s 147 of the Act dated 31 March 2022 on the basis of CIT(A) order in Appellant’s own case for AY 2012-13 without any independent application of mind would lead to borrowed satisfaction leading to entire reassessment proceedings being bad in law;

Validity of reassessment notice issued under Section 148 of the Act:

3. erred in objecting to the Ld. CIT(A) order wherein it is held that issuing reassessment notice under Section 148 of the Act dated 10 April 2021 without adhering to the procedure laid down under Section 148A of the Act is bad in law and thereby leading to invalid reassessment proceedings and consequent reassessment order dated 31 March 2022 being bad in law and liable to be quashed;

Erroneous consideration of income assessed in the hands of the Appellant:

4. erred in objecting to the Ld. CIT(A) order where it has been held that the Ld. AO has failed to establish proper justification and reconciliation for adoption of income of Rs. 5.39 crores, which in fact is the income assessed in the hands of Appellant’s successor entity (i.e. Lupin Investments Private Limited) instead of the original entity (i.e. Lupin Properties Limited);

Issuance of assessment order in violation to the CBDT Instruction No. 8/2017 dated 29 September 2017 and CBDT Circular 19/2019 dated 14 August 2019

5. erred in objecting to the Ld. CIT(A) order wherein it has been held that the assessment order passed under section 143(3) read with section 147 of the Act dated 31 March 2022 ignores the binding CBDT instructions [viz CBDT Instruction No. 8/2017 dated 29 September 2017; CBDT Instruction No. 1/2018 dated 12 February 2018; and Letter (F. No. System/ITBA/Digital Signature/16-17/181) dated 16 February 2018] which requires all the department orders/communications/ notices being issued through the ‘e-proceeding’ facility to be signed digitally, and hence, the assessment order dated 31 March 2022 passed is invalid and liable to be quashed;

6. erred in objecting to the Ld. CIT(A) order wherein it has been held that the assessment order under section 143(3) read with section 147 of the Act dated 31 March 2022 has been passed without adhering to the requirements enshrined in the CBDT Circular 19/2019 dated 14 August 2019 manually signed and a manual DIN has been communicated separately without obtaining the approval from the learned Chief Commissioner/Director General of Income Tax, thereby rendering the assessment order dated 31 March 2022 null and void and deemed to have been never issued, and hence the assessment order issued is bad in law and liable to be quashed;

No failure on part of Assessee to disclose truly and fully material facts:

7. erred in objecting to the CIT(A) order wherein it is held that reopening the assessment after four years from the end of the relevant assessment year under section 147 of the Act without there being failure on part of the Assessee to truly and fully disclose all material facts during the course of original assessment proceedings leads to entire reassessment proceedings being bad in law,

Addition made under section 68 of the Act in respect of share application money:

8. erred in objecting the order of Ld. CIT(A) deleting the addition in respect of share application money without appreciating that the Assessee has provided sufficient explanation about the nature and source of the credit (i.e. share application money) in the books of accounts, and thereby making the impugned addition as bad-in-law;

9. erred in objecting to CIT(A) order deleting the addition in respect of share application money on account of failing to establish the genuineness of the transaction to the satisfaction of the assessing officer without appreciating that the Assessing Officer has neither conducted any independent enquiry nor brought any cogent material on record to disprove the evidences furnished by the Assessee during the course of assessment proceedings;

Initiation of penalty proceedings under section 271(1)(c) of the Act

10. erred in objecting to Ld. CIT(A) order deleting the penalty under section 271(1)(c) of the Act without appreciating that the additions made by the Ld. AO has been deleted by the Ld. CIT(A). thus, there being no quantum addition, no penalty can be initiated;

Levy if interest under Section 234B of the Act

11. erred in objecting to Ld. CIT(A) order deleting the interest under Section 234B of the Act without appreciating that the same is consequential in nature;

Assessee’s Additional Grounds:

Reopening of assessment is barred by limitation:

12. without prejudice to the above, the learned CIT(A) has erred in upholding the action of the Ld. AO in assuming jurisdiction under Section 147 of the Act by issuing notice under Section 148 of the Act dated 10 April 2021 for year under consideration, without considering the fact that time limit prescribed under Section 149 for reopening the assessment for the year under consideration had already expired prior to CIT(A) order for AY 2012-13 dated 18 February 2020;

13. without prejudice to the above, the leamed CIT(A) has erred in upholding the action of the Ld. AO in invoking Section 150(1) of the Act, ignoring the express embargo contained under Section 150(2) of the Act, as on the date of CIT(A) order for AY 2012-13, the reopening of assessment under Section 148 for year under consideration could not be made as time limit available under Section 149 for the said year had already expired and said reopening is beyond time period and liable to be quashed;

Validity of reassessment notice issued under Section 148 of the Act:

14. without prejudice to the above, the learned CIT(A) has erred in upholding the action of the Ld. AO without appreciating that the jurisdictional assessing officer did not have jurisdiction to issue such notice after the introduction of Eassessment of Income Escaping Assessment Scheme, 2022 notified under section 151A of the Act, thereby rendering the impugned notice under section 148 as invalid and bad in law;”

5. Briefly stated facts of the case are that the assessee, Lupin Investments Private Limited, is the successor to Lupin Properties Limited. The assessee was engaged, inter-alia, in mall management, leasing of properties and investment activities. Lupin Properties Limited was subsequently amalgamated with Lupin Investments Private Limited with effect from 1 October 2016 pursuant to an order of the National Company Law Tribunal, and the present proceedings are being pursued by the successor entity.

5.1 The return of income for the Assessment Year 2010-11 was filed by M/s Lupin Properties Limited on 30.09.2010 declaring total income of Rs.58,81,491 under normal provisions of Income-tax Act, 1961 (in short the ‘Act’) and book profit under section 115JB of the Act. The return was processed under section 143(1) and subsequently selected for scrutiny. Assessment under section 143(3) was completed on 31.03.2013 determining income at Rs.59,38,890 with an addition of Rs.82,000 on account of notional interest.

5.2 Thereafter, the reassessment proceedings were initiated on the issue of share application money pursuant to observations/directions emanating from first appellate proceedings for Assessment Year 2012-13. The Assessing officer issued notice u/s 148 on 16/03/2021 and thereafter another notice u/s 148 was issued on 10/04/2021. Before us the ld Counsel for the assessee submitted that notice dated 16/03/2021 was issued on nonexistent entity so same was dropped and another notice was issued in 10/04/2021.

5.3 During reassessment, the Assessing Officer examined share application money of Rs. 10,75,00,000 received from group concerns, including M/s Lupin Marketing Pvt. Ltd. and Visiomed India Pvt. Ltd. The assessee submitted that the identity and creditworthiness of the investors were duly established through PAN, audited financial statements, and bank statements, and that the transactions were routed through banking channels. It was further submitted that the source of funds of the investors was primarily dividend income received from Lupin Limited, and that the share application money had already been examined and accepted in original assessment proceedings. The assessee also furnished valuation working and explained that the provisions relating to share premium under section 56(2)(vii)(b) and amended section 68 were not applicable to the year under consideration. However, the Assessing Officer rejected the submissions, held that the valuation lacked proper basis, and treated the entire amount of Rs. 10,75,00,000 as unexplained cash credit under section 68, thereby completing reassessment under section 143(3) read with section 147 on 29.09.2021 determining total income at Rs. 11,34,38,892.

6. On further appeal, the assessee challenged both the assumption of jurisdiction as well as the addition on merits. Before the learned CIT(A), the assessee contended that the very issue of share application money had already been specifically examined by the Assessing Officer in the course of the original assessment proceedings under section 143(3). It was submitted that the Assessing Officer had called for specific information regarding the shareholders and share application money; that the assessee had furnished the requisite details and supporting evidence; and that the Assessing Officer, after making further enquiries, had accepted the transactions without making any addition under section 68. It was, therefore, contended that the subsequent reopening amounted merely to a review of the assessment already completed and was consequently barred by the principle against change of opinion. It was further contended that the reassessment proceedings were initiated without following the procedure prescribed under section 148A.

6.1 The learned CIT(A), accepting the said contention, held the reassessment proceedings to be unsustainable and also deleted the addition made under section 68 on merit observing as under:

“4. Analysis & Adjudication:-

4.1. Ground Nos. 1 to 3: Validity of Assessment Order due to DIN Defect

I have carefully considered the facts of the case, assessment order, and detailed submissions of the appellant. The appellant has contended that the assessment order, notice of demand, and computation sheet are invalid due to alleged defect in Document Identification Number (DIN) and non-compliance with CBDT Circular No. 19/2019. It is observed from records that the assessment order dated 29.09.2021 bears a valid DIN and was communicated through official channels. The contention of the appellant that separate DIN should be generated for each document is not tenable, as the purpose of DIN is to ensure authenticity and traceability of communication, which stands fulfilled in the present case. Further, the appellant has participated in assessment proceedings and has not demonstrated any prejudice caused due to alleged procedural irregularity.

It is a settled position of law that procedural defects which do not go to the root of jurisdiction do not invalidate assessment proceedings. The Hon’ble Supreme Court in CIT v. Jagannath Gupta & Sons (119 ITR 307) and CIT v. Smt. P.K. Kochammu Amma (125 ITR 624) has held that technical defects cannot render proceedings invalid when substantive compliance exists. Further, CBDT circulars are directory in nature and cannot override statutory provisions. In the present case, there is no evidence that the order was issued manually without authorization or outside the system. Accordingly, the objection raised by the appellant is devoid of merit and Ground Nos. 1 to 3 are dismissed.

4.2. Ground Nos. 4 to 11: Validity of Reopening u/s 147/148 Sustainable in Law Whether Sustainable in Law

I have carefully considered the assessment order, reasons recorded for reopening, submissions of the appellant, and the judicial precedents relied upon. The core issue involved in these grounds pertains to the validity of reopening of assessment under section 147, which strikes at the very root of jurisdiction of the Assessing Officer. It is an admitted position that the original assessment in the present case was completed under section 143(3) after due scrutiny, wherein specific queries were raised by the Assessing Officer in respect of share application money received during the relevant previous year. The appellant had duly furnished complete details including confirmations, ledger accounts, bank statements, and other supporting documents, which were examined and accepted by the Assessing Officer in the original assessment proceedings. Thus, it is evident that the issue of share application money was not only within the knowledge of the Assessing Officer but was also consciously examined and accepted. The reopening has been initiated after a lapse of several years based on directions issued in a subsequent appellate order for another assessment year, without bringing any fresh tangible material on record. This clearly establishes that the reopening is based on reappraisal of existing material, which is impermissible in law.

It is a settled position of law that where an issue has been examined during original assessment proceedings, reopening on the same issue amounts to change of opinion, which is not permissible under section 147. The Hon’ble Supreme Court in the landmark judgment of CIT v. Kelvinator of India Ltd. (320 ITR 561) has categorically held that the concept of “change of opinion” must be treated as an in-built test to check abuse of power by the Assessing Officer, and that reopening cannot be based on mere review of earlier decision. In the present case, there is no allegation that the assessee failed to disclose material facts fully and truly; rather, all primary facts were disclosed and examined during original assessment. The reasons recorded for reopening do not indicate any new tangible material but merely refer to earlier proceedings in a different assessment year. This is clearly insufficient to confer jurisdiction under section 147. Further, the Hon’ble Delhi High Court in CIT v. Usha International Ltd. (348 ITR 485) has held that once a query is raised and answered, even if not specifically discussed in the assessment order, it must be presumed that the issue has been examined, and reopening on such issue is invalid.

Further, it is observed that the reopening has been triggered based on directions of the learned CIT(A) in proceedings for AY 2012-13, which itself is not a valid ground for reopening unless supported by independent application of mind by the Assessing Officer. The law is well settled that the Assessing Officer must form his own “reason to believe” based on tangible material and cannot act merely on borrowed satisfaction. The Hon’ble Delhi High Court in PCIT v. Meenakshi Overseas Pvt. Ltd. (395 ITR 677) has held that where the Assessing Officer merely reproduces information received from another authority without independent application of mind, the reopening is invalid. Similarly, in Signature Hotels Pvt. Ltd. v. ITO (338 ITR 51 Del), it was held that vague and general information cannot form the basis of reopening. In the present case, the reasons recorded reflect that the Assessing Officer has merely acted upon directions issued in appellate proceedings of another year, without independently verifying whether income has actually escaped assessment in the relevant year. This clearly amounts to borrowed satisfaction, rendering the reopening invalid.

Another significant aspect raised by the appellant is non-compliance with procedural requirements under section 148A, which mandates conducting enquiry, providing opportunity, and passing a speaking order before issuing notice under section 148. Though the Assessing Officer has proceeded under preamended provisions, it is evident that the reopening notice was issued during the transitional period where applicability of amended provisions has been upheld in various judicial pronouncements. The Hon’ble Supreme Court in Union of India v. Ashish Agarwal (444 ITR 1 SC) has emphasized the importance of following due process and safeguarding rights of the assessee in reassessment proceedings. Even otherwise, failure to provide proper reasons, denial of adequate opportunity, and non-supply of material relied upon vitiates the reassessment proceedings as being violative of principles of natural justice. The Hon’ble Supreme Court in GKN Driveshafts (India) Ltd. v. ITO (259 ITR 19) has held that reasons recorded must be furnished and objections must be disposed of by passing a speaking order. In the present case, the procedural safeguards have not been adequately complied with, thereby rendering the reopening legally unsustainable.

Further, it is observed that the reopening has been made beyond the period of four years from the end of the relevant assessment year. In such cases, the proviso to section 147 mandates that reopening can be done only where there is failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. In the present case, there is no such allegation in the reasons recorded. On the contrary, the records clearly show that all details relating to share application money were duly furnished during original assessment proceedings. The Hon’ble Supreme Court in Hindustan Lever Ltd. v. R.B. Wadkar (268 ITR 332 Bom HC) and several subsequent decisions have held that absence of such allegation renders reopening invalid. The Hon’ble Gujarat High Court in Gujarat Power Corporation Ltd. v. ACIT (350 ITR 266) has also held that where full disclosure is made, reopening after four years is impermissible. Therefore, the reopening in the present case fails to satisfy the jurisdictional condition prescribed under the proviso to section 147.

In view of the above detailed analysis, it is clear that the reopening of assessment is vitiated on multiple legal grounds, namely (i) absence of fresh tangible material, (ii) change of opinion on an issue already examined, (iii) borrowed satisfaction without independent application of mind, (iv) violation of procedural safeguards, and (v) failure to satisfy conditions for reopening beyond four years. These defects go to the root of jurisdiction and render the entire reassessment proceedings void ab initio. Accordingly, following the binding judicial precedents of the Hon’ble Supreme Court and various High Courts, the reassessment order passed under section 143(3) read with section 147 is hereby held to be invalid and without jurisdiction.

4.3. Ground Nos. 12 to 14: Addition u/s 68 Share Application Money of Rs. 10,75,00,000

I have carefully considered the assessment order, the submissions of the appellant, and the material placed on record. The Assessing Officer has made an addition of Rs. 10,75,00,000 under section 68 treating the share application money received from M/s Lupin Marketing Pvt. Ltd. and M/s Visiomed India Pvt. Ltd. as unexplained cash credits. The addition has been made primarily on the ground that the appellant failed to establish the identity, creditworthiness, and genuineness of the transactions, and that the valuation of shares at a high premium lacked justification. However, on perusal of the records, it is evident that the appellant had furnished complete details during both the original assessment proceedings as well as reassessment proceedings, including PAN, confirmations, audited financial statements, bank statements, and transaction trail of funds of the investor companies. It is also noted that both the investor entities are group concerns and are duly assessed to tax, and the transactions have been carried out through proper banking channels. The source of funds of the investors has also been explained as being derived from dividend income received from a listed entity, which has not been controverted by the Assessing Officer with any adverse material.

It is a settled position of law that once the assessee discharges its primary onus by establishing the identity of the creditor, their creditworthiness, and the genuineness of the transaction, the burden shifts to the Assessing Officer to bring on record any material to disprove the same. In the present case, the Assessing Officer has not conducted any independent enquiry, nor has he brought any adverse material to rebut the evidences furnished by the appellant. The Hon’ble Supreme Court in CIT v. Lovely Exports Pvt. Ltd. (216 CTR 195) has held that where share application money is received from identifiable persons, no addition can be made in the hands of the company, and the Department is free to proceed against the investors. Similarly, the Hon’ble Bombay High Court in CIT v. Gagandeep Infrastructure Pvt. Ltd. (394 ITR 680) has held that share premium cannot be questioned under section 68 once identity and genuineness are established. Further, the Hon’ble jurisdictional High Courts have consistently held that commercial expediency and valuation of shares are not to be examined by the Assessing Officer under section 68, particularly for years prior to insertion of section 56(2)(viib).

In the present case, the Assessing Officer has doubted the valuation of shares and the commercial rationale of the transaction, which is beyond the scope of section 68 for the relevant assessment year. It is pertinent to note that the provisions of section 56(2)(viib), which empower the Assessing Officer to examine excess share premium, were introduced with effect from AY 2013-14 and are not applicable to the year under consideration. Therefore, questioning the valuation of shares in the present case is legally untenable.

Further, it is also relevant to note that the share application money was received in earlier years and was duly recorded in the books of account, which were examined during the original assessment proceedings. There is no finding by the Assessing Officer that the documents furnished are false or fabricated. The addition has been made merely on suspicion and on the basis of general observations regarding high premium and group transactions. The Hon’ble Supreme Court in CIT v. Orissa Corporation Pvt. Ltd. (159 ITR 78) has held that where the assessee furnishes names and addresses of creditors and the Department fails to pursue the matter further, addition under section 68 is not justified.

In view of the above facts and judicial precedents, I am of the considered opinion that the appellant has satisfactorily discharged the burden cast upon it under section 68. The Assessing Officer has failed to bring any cogent material on record to disprove the evidences furnished. Accordingly, the addition of Rs. 10,75,00,000 made under section 68 is unsustainable in law and is hereby deleted.

7. Before us, the learned Departmental Representative submitted that the reopening was founded upon tangible material and upon the observations/directions of the learned CIT(A) in the appellate proceedings for Assessment Year 2012-13. According to him, the learned CIT(A) was, therefore, not justified in characterising the reassessment as a mere change of opinion.

8. Per contra, the learned counsel for the assessee filed paper book containing in both the appeals i.e. in ITA No. 6386/MUM/2026, total pages 1 to 595 and in ITA No. 5941/MUM/2026, total pages 1 to 616 and supported the order of the learned CIT(A). He submitted that there was nothing which had come to the possession of the Assessing Officer subsequent to the original assessment which could constitute fresh tangible material. According to him, all material facts relating to the share application money had been disclosed during the original assessment proceedings and, more importantly, the issue had not remained merely a matter of disclosure: it had been the subject matter of specific enquiry and verification by the Assessing Officer. He submitted that the Assessing Officer had issued notice under section 133(6), obtained further information and examined the supporting documents before accepting the share application money. The subsequent reopening, founded upon an observation made in appellate proceedings for another assessment year, therefore amounted to a reappraisal of the very material which was already available on the assessment record.

8.1 Further, the learned counsel referred to the finding of the learned CIT(A) of not following the procedure of amended provisions of section 148 of the Act including issue of the notice under section 148A(b) and order under section 148A(d) of the Act before issue of notice under section 148 of the Act. He submitted that as the first notice issued under section 148 in month of March, 2021 was issued on a invalid name and therefore same was dropped and again fresh notice has been issued 1/04/2021 and therefore the Assessing officer was required to follow the procedure as held by the Hon’ble Supreme Court in the case of UOI v. Ashish Agarwal (SC). He submitted that the Revenue in its ground has not even challenged this finding of ld CIT(A) and thus, this appeal of the Revenue is not liable to be proceeded with.

9. We have considered the rival submissions and carefully perused the material available on record. The principal question which arises for our consideration is whether the reopening of the assessment on the issue of share application money was founded upon any fresh tangible material or whether it constituted a mere change of opinion on an issue which had already been examined in the original assessment proceedings.

9.1 On a careful consideration of the record, we find considerable force in the submission of the learned counsel for the assessee. The significance of the material placed before us is that it does not merely establish that the assessee had disclosed the receipt of share application money. The record demonstrates that the Assessing Officer had specifically called for the information and thereafter pursued the matter by further enquiry.

9.2 In the original assessment proceedings, the Assessing Officer issued a notice under section 142(1) dated 21 July 2011 specifically requiring the assessee to furnish details of the shareholders/share application money received. In response thereto, the assessee furnished the requisite details, which are placed in the paper book at pages 122 to 125. The statement so furnished contained, inter alia, particulars of the shareholders and the share application money received from them. The amounts reflected therein included substantial sums received from Rahas Investments Pvt. Ltd., Lupin Marketing Pvt. Ltd., Lupin Investments Pvt. Ltd. and Visiomed (India) Pvt. Ltd. For ready reference, the detail filed by the assessee regarding share application money is extracted as under:

Particulars	31/03/2009	31/03/2008	Shareholders of these cos
Rahas Investments Pvt.ltd	101,200,000	3,896,013	Pg 1
Synchem Chemicals (I) Pvt Ltd	–	122,825	–
Lupin Marketing Pvt Ltd	80,800,000	–	Pg 2
Lupin Investments Pvt Ltd	22,350,000	–	Pg 3
Visiomed (I) Pvt.ltd	88,392,750	2,642,750	Pg 4
TOTAL	292,742,750	6,661,588

9.3 The enquiry did not end with the furnishing of the aforesaid statement. The assessee also furnished details of the shareholders and beneficial owners, including their addresses, PAN and percentage of shareholding. It further furnished a specific statement of the share application money outstanding as on 31 March 2009, along with the names, PANs and amounts attributable to the respective applicants. The record also shows that the assessee had furnished the shareholding pattern with its letter dated 21 July 2011 and explained, with reference thereto, why the provisions of section 2(22)(e) were not attracted. More importantly, the assessee furnished confirmations of the accounts (available at paper book pages 54 to 55) , acknowledgements of returns of income of the share applicants (available at pages 56 to 62) , and the bank statement of the subscriber (available at page 63). In respect of Visiomed (India) Pvt. Ltd., the confirmation furnished before the Assessing Officer on 7 November 2011 is available at paper book pages 65 to 68. The Assessing Officer also examined the apparent excess of share application money over the authorised share capital. In response, the assessee furnished reconciliation on 28 November 2011 and 29 November 2011 explaining the position and the return of the excess share application money. The notice issued under section 133(6) and the reply thereto are available at paper book page 79, while the financial statements of Lupin Marketing Limited are placed at pages 80 to 86.

9.4 The above sequence of events is of considerable significance. This is not a case where the assessee merely placed some information on record and the Assessing Officer remained silent. The assessment record, as placed before us, shows a specific requisition under section 142(1), a detailed response by the assessee, further supporting documents, examination of the share application money vis-à-vis the authorised share capital, a subsequent reconciliation furnished by the assessee, and an enquiry under section 133(6). The issue was thus actually examined in the course of the original assessment proceedings. The absence of a detailed discussion on each item in the assessment order cannot, in these circumstances, obliterate the enquiry which the record affirmatively demonstrates. The distinction between a case of mere disclosure and a case of enquiry is material. The doctrine of change of opinion is attracted where the Assessing Officer, having considered a particular issue in the course of the original assessment, seeks subsequently to reopen the assessment merely because he or his successor takes a different view of the same material. What the law does not permit is not merely a change in the language of the order; it is a second examination of the same issue on the same material with a view to arriving at a different conclusion.

9.5 In the present case, the subsequent reopening did not rest upon any new document, new information, subsequent discovery or other tangible material concerning the share application money. The foundation of the reopening was the observation made in the appellate proceedings for Assessment Year 2012-13 that the relevant addition ought to have been considered at the stage of receipt of the share application money rather than at the stage of allotment of shares. That observation, by itself, did not bring any new material into the record of the year under consideration. The material upon which the reassessment was ultimately founded was already available before the Assessing Officer in the original assessment proceedings.

9.6 The principle governing the matter is well settled by the judgment of the Hon’ble Supreme Court in CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561 (SC), wherein the Hon’ble Supreme Court held that the concept of “change of opinion” constitutes an in-built test to prevent an arbitrary exercise of the power of reassessment and that the power under section 147 cannot be exercised as a power of review. The existence of tangible material having a live nexus with the formation of the requisite belief is therefore fundamental to the assumption of reassessment jurisdiction.

9.7 Tested on the aforesaid principle, the present case falls squarely within the mischief sought to be prevented by the doctrine of change of opinion. The issue of share application money was specifically raised by the Assessing Officer; the assessee furnished the information sought; supporting documents were furnished; further enquiry was made under section 133(6); the apparent discrepancy concerning the authorised share capital was examined and reconciled; and the matter was ultimately accepted in the original assessment. Thereafter, in the absence of any fresh tangible material, the same issue was reopened on the basis of an observation arising from appellate proceedings for another assessment year. The reassessment thus amounted to a review of the earlier assessment and is not sustainable in law.

9.8 We, therefore, find no infirmity in the conclusion of the learned CIT(A) that the reopening of the assessment on the issue of share application money was vitiated by change of opinion. The first ground of appeal raised by the Revenue is accordingly dismissed.

9.9 The assessee has also raised an objection that the reassessment proceedings were initiated without following the procedure contemplated under section 148A of the Act. It was submitted that the first notice issued under section 148 in March 2021 was issued in an incorrect name and was thereafter dropped, followed by issuance of a fresh notice in April 2021, and that the procedure contemplated by the judgment of the Hon’ble Supreme Court in Ashish Agarwal (supra) was therefore required to be followed.

9.10 We find that the ld. CIT(A) rendered a specific and unambiguous finding that the reassessment proceedings, having been initiated by a notice under section 148 without following the procedure prescribed under section 148A , as mandated by the Hon’ble Supreme Court in Union of India v. Ashish Agarwal (supra) , was invalid on that ground alone. This finding has not been assailed in any of the grounds raised by the Revenue before us. It is well settled that a finding of the first appellate authority that is not specifically challenged attains finality inter parties, and the Revenue cannot, in the same breath, seek to sustain the reassessment while leaving unchallenged a finding that is, by itself, fatal to it. On this short ground too, the Revenue’s appeal must fail.

10. For the same reason, the grounds raised by the Revenue challenging the deletion of the addition made under section 68 in respect of share application money do not survive for adjudication. Once the very assumption of jurisdiction to reopen the assessment fails, the reassessment order cannot furnish a sustainable foundation for adjudication of the additions made therein. The grounds relating to interest under section 234B and initiation/deletion of penalty proceedings under section 271(1)(c) are likewise consequential or academic in the facts of the present case.

11. The cross-objection filed by the assessee is also rendered academic to the extent it seeks adjudication of the alternative legal and consequential grounds, since the assessee has already succeeded on the principal jurisdictional issue.

12. The grounds raised in the Revenue’s appeal and in the assessee’s cross-objection for Assessment Year 2010-11 are, in substance, identical to those considered and decided by us above for Assessment Year 2009-10, arising from a common reopening founded on the very same directions of the ld. CIT(A) for Assessment Year 2012-13 and resting on the very same infirmities of change of opinion, borrowed satisfaction and non-compliance with section 148A. Following our reasoning and conclusions above mutatis mutandis, the Revenue’s appeal for Assessment Year 201011 is dismissed, and the assessee’s cross-objection for that year, being in support of the impugned order, is disposed of as having become academic.

13. In the result, (a) Revenue’s appeal in ITA No. 5952/Mum/2026 for AY 2010-11 is dismissed as withdrawn; (b) the Revenue’s appeals for Assessment Years 2009-10 and 2010-11 are dismissed; and (c) the assessee’s cross-objections for Assessment Years 2009-10 and 2010-11 are dismissed as academic, except to the extent the findings recorded above otherwise govern the issues raised therein.