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2. We need not refer to the factual matrix relating to ITA 2026/2010 (supra) but are only required to note that the aforesaid questions relate to interpretation of Section 147 of the Income Tax Act, 1961 (Act, for short) as amended w.e.f. 1st April, 1989. We record that the questions of law require elucidation in view of contentions raised regarding observations made by the Bench of three Judges of this Court in CIT vs. Kelvinator of India Limited, (2002) 256 ITR 1 (Del - FB). Revenue had filed an appeal against the said decision but the Supreme Court dismissed the appeal of the Revenue in a decision which is reported as CIT vs. Kelvinator of India Ltd. (2010) 2 SCC 723. Conflicting views expressed on the question of ―change of opinion‖ have been noticed below.

31. Mr. Ajay Vohra, Advocate, appearing for the assessee had submitted that the reference should be declined and not answered in view of doctrine of merger as the decision of the Full Bench of this Court in the case of Kelvinator of India Ltd. (supra) has merged and was approved by the Supreme Court. Reference was made to Kunhayammed and Ors. vs. State of Kerala and Anr. (2000) 245 ITR 360 (SC) and Snowcem India Ltd. vs. Deputy Commissioner of Income Tax (2009) ITR 170 (Bom.). We note that these are decisions on the question whether and when an application for review can be filed before the High Court, even after dismissal of Special Leave to Appeal by the Supreme Court. The Supreme Court in their decision in Kelvinator of India (supra) had examined the question whether ―change of opinion‖ can justify reopening of assessing. The Supreme Court has not stated or made any observation with reference to Section 114 of the Evidence Act. The doctrine of merger, if applied, would require that we accept and apply the reasoning and ratio given by the Supreme Court. By applying the ―doctrine of merger‖ we cannot be hold that the reasoning or the ratio given by the Supreme court is the reasoning given by the High Court. Supreme court in the present case has given detailed reasons and ratio why ―change of opinion‖ cannot be a ground to reopen assessment. The said reasoning or ratio are the binding precedent.

7. In Kelvinator (2002) 256 ITR 1 (FB), a Full Bench judgment of this court, this question has been answered in the affirmative on the ground that an assessment order passed under section 143(3) of the Act must be presumed to be one passed after full scrutiny and formation of opinion on the points raised in the return and in the course of the assessment proceedings. It has been observed that section 114(e) of the Evidence Act comes into operation and it must be presumed that the AO had performed his duty in the manner expected of him, that is, after examining and forming an opinion on all aspects of the return, though he has not been articulate about it in the assessment order. It has also been held that if such a presumption is not drawn, that would amount to putting a premium on a perfunctory discharge of duties by the assessing authority and permitting him to take advantage of his own wrong. The contention of the revenue to the contrary was rejected in terms. I do not therefore think that in a case where failure to furnish full and true particulars is not shown in the reasons recorded for reopening the assessment, albeit within four years, the assessment made under section 143(3) can be reopened on the ground that no opinion was formed by the assessing authority in the original assessment in respect of matters that are the subject-matter of the notice under section 148. That question, in my opinion, stands concluded by the Full Bench judgment of this court in Kelvinator (supra). It may be added that Kelvinator (supra) was also a case of the assessment being reopened within four years.

18. We are not concerned here with the case of a derelict assessee who has failed to furnish full and true particulars at the time of assessment. It is nobody's case that the assessee did not do so. As noted by me earlier, the first proviso to section 147 can be resorted to only if the assessee has not discharged the duty. Where the assessee has discharged his duty and the assessment completed under section 143 (3) is reopened within the period of 4 years from the end of the assessment year, the assessing officer has to either show that the disclosure is not full and true or he has come into possession of some ―tangible material‖, to borrow with respect the expression used by the Supreme Court in Kelvinator (supra), to come to the conclusion that there is escapement of income. The material must have a live link with the formation of the belief regarding escapement of income. When there is no failure on the part of the assessee to furnish full and true particulars and there is no tangible material on the basis of which the assessing officer can allege escapement of income, the only consequence would be that the assessing officer was exercising the power of review on the very same materials which he is presumed to have examined. This would amount to abuse of the power to re-assess and has to be checked. The solution to this problem lies in deciding the question whether there was full and true disclosure by the assessee. It does not lie in pigeon-holing the ruling of the Full Bench of this court in Kelvinator (supra), affirmed by the Supreme Court, only to cases where there is overt evidence in the assessment order framed under section 143(3) to show that the assessing officer had originally formed an opinion in favour of the assessee. That, with respect, would water down the ratio of not only the Full Bench judgment of this court in Kelvinator (supra), but also the judgment of the Supreme Court which affirmed the Full Bench judgment and would also introduce an area of uncertainty despite the categorical pronouncements. I do not think that within the parameters of judicial discipline and comity I can take the liberty of putting such gloss or embellishment upon those binding rulings. To argue or hold that when the assessing officer fails to examine a subject matter, entry, claim or deduction, he forms no opinion, notwithstanding that the assessee had made a full and true disclosure and notwithstanding that the assessment was completed under section 143 (3) and to further hold that it would be a case of ―no opinion‖, would be to fly in the teeth of the two rulings. It is not even open to the revenue to urge such a proposition.