:1: bgp bgp bgp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION INCOME INCOME INCOME TAX APPEAL NO.912 OF 2008 TAX APPEAL NO.912 OF 2008 TAX APPEAL NO.912 OF 2008 The Commissioner of Income Tax, ..Appellant Vs. M/s.Ahuja Builders ..Respondent Mr.A.S.Shivsharan for the Appellant. Mr.K.Shivram with Mr.Paras Savla for the Respondent. CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & S.J.KATHAWALLA, S.J.KATHAWALLA, S.J.KATHAWALLA, JJ. JJ. JJ. DATE DATE DATE : 23RD SEPTEMBER, 2008 : 23RD SEPTEMBER, 2008 : 23RD SEPTEMBER, 2008 P.C. P.C. P.C. . Heard the learned Counsel for the parties. In the above, the Appellant is seeking to raise the following substantial questions of law: a. Whether on the facts and circumstances of the case and in law, the Hon’ble Tribunal was justified in confirming the order of Learned Commissioner of Income Tax (A) that the jurisdictional preconditions invoking the provisions of section 147 of the Income Tax Act,1961 are not satisfied and therefore the entire proceedings are void? b. Whether on the facts and circumstances of the case and in law, the Hon’ble Tribunal was justified in confirming the order of the Learned Commissioner of Income Tax (A) that the reopening of the assessment was not on account of change of opinion of cogent evidence available on record i.e. the difference in the amount of bogus loans introduction in the books on one hand and that declared in the VDIS ? c. Whether on the facts and circumstances of the case and in law, the Hon’ble Tribunal was justified in confirming the order of the Learned Commissioner of Income Tax (A) by ignoring the fact that the Assessee had at no :2: point of time adduced evidence in support of its adoption of peak method? d. Whether on the facts and circumstances of the case and in law, the Hon’ble Tribunal was justified in confirming the order of the Learned Commissioner of Income Tax (A) without appreciating the fact that though peak method is held as correct method in certain judicial pronouncement, yet the onus is on the Assessee to prove the correctness of calculation adopted by the Assessee? 2. In the above, the Commissioner of Income Tax (A) as well as the Income Tax Appellate Tribunal have concurrently given a finding that the reopening of the assessment was based on change of opinion, which was not permissible in law. Over and above, the Tribunal has concurred with the finding of the CIT (A), that the Assessee does not disclose any new material or information and it was only a case of change of opinion. 3. Over and above, as pointed out by the learned Counsel for the Respondent, a decision of this Court in the case of Uma Corporation Vs. Krishna Prabhakar, Uma Corporation Vs. Krishna Prabhakar, Uma Corporation Vs. Krishna Prabhakar, Assistant Assistant Assistant CIT & Ors (2006) 284 ITR 67 (Bom) CIT & Ors (2006) 284 ITR 67 (Bom) CIT & Ors (2006) 284 ITR 67 (Bom), where this Court has clearly held that the certificate granted under the VDIS cannot be taken into account for the purpose of re-assessment. Under these circumstances, there is no merit in the above Appeal. Hence, the same stands dismissed. (S.J.KATHAWALLA,J.) (S.J.KATHAWALLA,J.) (S.J.KATHAWALLA,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) :3: