TMI Blog2023 (1) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the claim was considered and only then allowed. In the backdrop of the facts and the law stated in Jindal Photo Films Ltd. [ 1998 (5) TMI 20 - DELHI HIGH COURT] even in the present case, between the date of the order of assessment sought to be reopened and the date of forming of opinion by the Assessing Officer, nothing new has happened. Neither is there any new information received nor is a reference made to any new material on record. The Assessing Officer simply has accorded a fresh consideration and come to a conclusion that the assessee ought to have claimed benefit of deduction under section 35ABB which would have resulted in reducing the allowance under section 32 - In the absence of any tangible material, the present case is nothing but a case of change of opinion and thus does not satisfy the jurisdictional foundation under section 147 of the Act. We have no hesitation in holding that the impugned notice under section 148 of the Act and the consequent order disposing off the objections raised for reopening of the assessment, are unsustainable and accordingly set aside the same. - WRIT PETITION NO. 2031 OF 2022 - - - Dated:- 9-1-2023 - DHIRAJ SINGH THAKUR V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed form for the said assessment year, which was filed by the petitioner and also sought the reasons for reopening of the assessment. 3. The following were the reasons for reopening of the assessment for the assessment year 2016-17 : REASONS FOR REOPENING OF THE ASSESSMENT U/S.147 OF THE ACT 1. The assessee filed its return on income on 16.10.2016 declaring income at total loss of Rs.7,88,83,872/- and the assessment was completed u/s 143(3) vide order dated 22.10.2018 accepting the returned income. The assessee is engaged in business of radio broadcasting. 2.1 Section 35ABB of the Income Tax Act provides that any capital expenditure actually paid for obtaining license to operate telecommunication services shall be allowed as deduction in equal installments during the number of years for which license is in force. Further as discussed in para 12 of the ITAT, Delhi in case of M/s. Digital Radio (Delhi) Broadcasting Ltd. Vide ITA No.4364/Del/2011 dated 24.11.2015, the scope of telecommunication services was increased to include the broadcasting services and cable services also, hence, provisions of Section 35ABB will apply to assessee engaged in these services. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been obtained separately from Addl. Commissioner of Income Tax Range 6(1) as per the provisions of section 151 of the Act. 4. Objections were fled to the notice under section 148 in which it was highlighted that claim of depreciation of licence fees as an intangible asset had been allowed since the assessment years 2007-08 in several scrutiny assessment proceedings and that it has also been done for the relevant assessment year 2016-17 in which a specific query in that regard had been raised. It is also stated that even for the assessment year 2017-18, the return had been accepted, after scrutiny by the same officer who had issued the impugned notice. It is also stated that reopening of the assessment was nothing but a change of opinion as there was no tangible material which would warrant the reopening of the assessment. Objections fled by the respondents were disposed of by the order dated 25th February 2022 by respondent No.4. 5. Both, the notice as also the order (supra) have been called in question primarily on the ground that the issue with regard to claim of depreciation on the intangible assets had been a matter of detailed scrutiny during the assessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Vs. Kelvinator of India Ltd. [2010] 320 ITR 561 held that there was a difference between power to review and power to reassess under section 147 and that the AO had no power to review and that, if the concept of change of opinion was removed, then, in the garb of reopening of the assessment, a review would take place. It was held : 4 ..Therefore, post-1-4-1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words reason to believe failing which, we are afraid, section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of mere change of opinion , which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. 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 re-opening the assessment, review would take place. One must treat the concept of change of opinion as an in-built test to ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved. It is merely a fresh 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 Office 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. It is also equally well settled that if a notice under Section 148 has been issued without the jurisdictional foundation under Section 147 being available to the Assessing Officer, the notice and the subsequent proceedings will be without jurisdiction, liable to be struck down in exercise of writ jurisdiction of this court. If reason to believe be available, the writ court will not exercise its power of judicial review to go into the sufficiency or adequacy of the material available. However, the present one is not a case of tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aspects which were sought to be examined during reassessment proceedings, it must be presumed that the same had been considered by the AO and held in favour of the assessee. The Court, while rejecting such a contention, held : 19 ...It is trite that a matter in issue can be validly determined only upon application of mind by the authority determining the same. Application of mind is, in turn, best demonstrated by disclosure of mind, which is best done by giving reasons for the view which the authority is taking. In cases where the order passed by a statutory authority is silent as to the reasons for the conclusion it has drawn, it can well be said that the authority has not applied its mind to the issue before it nor formed any opinion. The principle that a mere change of opinion cannot be a basis for reopening computed assessments would be applicable only to situations where the assessing officer has applied his mind and taken a conscious decision on a particular matter in issue. It will have no application where the order of assessment does not address itself to the aspect which is the basis for reopening of the assessment, as is the position in the present case. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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