2002 (4) TMI 10 - HC - Income Tax

Reassessment notice - Profit - reason to believe It cannot therefore be said that notice is based on suspicion or gossip. May be such presumption is provided for turnover up to Rs. 40 lakhs. But as and when there is a turnover exceeding Rs. 40 lakhs it cannot be expected that profit would show a diminishing trend. - If the Assessing Officer has stated in the reasons that the profit ranges from 8 per cent to 12 per cent. then it is not gossip but is in the line of statutory provision. - reassessment notice has rightly been issued - Assessing Officer had reasons to believe to initiate proceedings

Summary

Issues Involved:
1. Validity of the notice issued under section 148 of the Income-tax Act.
2. Whether the Assessing Officer had "reason to believe" that income had escaped assessment.
3. The sufficiency and relevance of the reasons recorded for reopening the assessment.
4. The applicability of section 44AD of the Income-tax Act.
5. The jurisdiction of the court to interfere at the notice stage.

Detailed Analysis:

1. Validity of the notice issued under section 148 of the Income-tax Act:
The petitioner challenged the notice issued under section 148, arguing that the Assessing Officer lacked the requisite "reason to believe" that income had escaped assessment. The petitioner contended that the reasons provided were merely reasons to suspect, not to believe, and thus, the notice was invalid.

2. Whether the Assessing Officer had "reason to believe" that income had escaped assessment:
The petitioner argued that the reasons supplied showed no direct material to justify the belief that income had escaped assessment. The petitioner claimed that the Assessing Officer's assumption of net profits ranging from 8% to 12% was baseless as the petitioner's net profit was below 3%. The respondents countered that the notice was issued after recording reasons and that the previous assessment under section 143(1)(a) did not involve any opinion formation, thus no change of opinion occurred.

3. The sufficiency and relevance of the reasons recorded for reopening the assessment:
The petitioner relied on several Supreme Court judgments, emphasizing that "reason to believe" must be based on reasonable grounds, not mere suspicion. The respondents referred to judgments asserting that the sufficiency of reasons is not for the court to judge, but the existence of belief and its bona fides can be examined. The court found that the reasons recorded were legitimate and not based on gossip or rumor, aligning with statutory provisions and practical experiences of the Assessing Officer.

4. The applicability of section 44AD of the Income-tax Act:
The court noted that section 44AD provides a presumption for net profit, which, although applicable to turnovers up to Rs. 40 lakhs, supports the Assessing Officer's reasoning that higher turnovers should not show diminishing profits. The court held that the presumption of profit ranging from 8% to 12% was in line with statutory provisions and practical experiences, thus not constituting gossip or rumor.

5. The jurisdiction of the court to interfere at the notice stage:
The court emphasized that interference at the notice stage is warranted only if the notice is based on no relevant material. The court cited the Supreme Court's observation that the Income-tax Officer must have prima facie grounds for assuming jurisdiction. The court found that the reasons provided were sufficient to exclude arbitrariness and that the petitioner should pursue remedies within the departmental framework rather than rushing to the court.

Conclusion:
The court concluded that the notice issued under section 148 was not without foundation and fell within the parameters described by the Supreme Court. The writ petition was dismissed, and the petitioner was advised to pursue remedies at the departmental level.