Tax Management India. Com
Law and Practice  :  Digital eBook
Research is most exciting & rewarding
  TMI - Tax Management India. Com
Follow us:
  Facebook   Twitter   Linkedin   Telegram

TMI Blog

Home

2004 (11) TMI 531

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... Tax Officer may be quashed and set aside. 2.. The respondents are not pressing the circular dated November 12, 2002 and therefore, the court is not required to examine the legality or the validity of the said circular. In the present case, the court is required to examine the validity of the reassessment orders made by the assessing officer, copies of which are at pages 46 to 49 of the writ petition, for the assessment years 2001-02 and 2000-01 dated August 7, 2003 and August 8, 2003, respectively. Earlier assessment orders are placed on record at pages 37 to 40 of the writ Oral. petition in respect of assessment years 2000-01 and 2001-02 dated September 5, 2002 and March 16, 2003, respectively. 3.. The petitioner herein is a stockist i .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... notification as under: "The case has been reopened in view of notification effective from November 28, 2000 regarding tea being tax-paid item as not included in kirana item." Similar is the position with regard to the other assessment year as well. It is in this background that the learned counsel for the petitioner has questioned the legality and validity of the reassessment orders. 6.. Our attention was drawn to various decisions of this Court as well as the apex Court. In Jindal Photo Films Ltd. v. Deputy Commissioner of Income-tax [1998] 234 ITR 170 a division Bench of this Court pointed out as under: "The power to reopen an assessment was conferred by the Legislature not with the intention to enable the Income-tax Officer to r .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... e same facts as were earlier available but acting on fresh information. Since the belief is that of the Income-tax Officer, the sufficiency of reasons for forming the belief is not for the court to judge but it is open to an assessee to establish that there in fact existed no belief or that the belief was not at all a bona fide one or was based on vague, irrelevant and non-specific information. To that limited extent, the court may look into the conclusion arrived at by the Income-tax Officer and examine whether there was any material available on the record from which the requisite belief could be formed by the Income-tax Officer and further whether that material had any rational connection or a live link for the formation of the requisite .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... application of mind by the same assessing officer to the same set of facts. While passing the original orders of assessment the order dated February 28, 1994, passed by the Commissioner of Income-tax (Appeals) was before the assessing officer. That order stands till today. What the assessing officer has said about the order of the Commissioner of Income-tax (Appeals) while recording reasons under section 147 he could have said even in the original orders of assessment. Thus, it is a case of mere change of opinion which does not provide jurisdiction to the assessing officer to initiate proceedings under section 147 of the Act." 7.. Section 24 of the Delhi Sales Tax Act, 1975 specifically provides that the Commissioner must have "reason to .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... true and full disclosure of primary facts. Once he has done that his duty ends. It is for the Income-tax Officer to draw the correct inference from the primary facts. It is no responsibility of the assessee to advise the Income-tax Officer with regard to the inference which he should draw from the primary facts. If an Income-tax Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening assessments: See Incometax Officer v. Lakhmani Mewal Das [1976] 103 ITR 437 (SC)." 8.. The case of Jindal Photo Films Ltd. [1998] 234 ITR 170 was again considered by a Full Bench of this Court in the case of Commissioner of Income-tax v. Ke .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ealed some material from the assessing officer so as to enable him to reopen the case. In view of the law which we have discussed above and other decisions it is clear that, merely because the assessing officer has changed his opinion, the assessing officer cannot call upon the assessee for reassessment and cannot issue coercive notice." 11.. In view of the well-settled position of law as discussed hereinabove and the facts of this case, which we have indicated above, it is clear that it is a case of a mere change of opinion and nothing more. Therefore, the petition is required to be allowed. The reassessment orders dated August 7, 2003 and August 8, 2003 are accordingly quashed and set aside. 12.. The writ petition is allowed with cost .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

 

 

 

 

Quick Updates:Latest Updates