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2022 (10) TMI 722 - HC - Income TaxReopening of assessment u/s 147 - delayed payment surcharge and interest on account of delayed payment - HELD THAT:- Expression, “reason to believe”, appearing in Section 147 of the Act does not give authority to the relevant assessing officer to take a different view on a matter which has been previously considered in course of the original assessment. A change of opinion is not permissible under colour of “reason to believe”. This would apply more so in respect of a notice seeking to reopen the matter pertaining to an assessment year more than four years after the end of the relevant assessment year. As at the time of passing the assessment orders in respect of assessment years 2012-13 and 2013-14, the relevant assessing officer(s) must have noticed the special treatment in the accounts of the delayed payment surcharge and the interest and, upon perceiving the treatment appropriate since the incomes on such counts had only notionally accrued but had not been realised, did not deem the accounts to be inappropriate or the treatment of the relevant heads impermissible; and as such, completed the assessment as per the audited accounts. The fact that a superior officer deemed such treatment unacceptable in respect of a subsequent assessment year, may make the earlier assessment orders fallible and liable to be reopened; though not on the ground that there was no full or true disclosure of material facts by the assessee, but by reason of the methodology adopted for the assessment. However, the freedom to reopen concluded orders of assessment that Section 147 permits in its primary provision is circumscribed by the additional conditions spelt out in its proviso in respect of assessment orders pertaining to the assessment years after the expiry of four years from the end thereof. Even in respect of concluded assessment orders of assessment years falling within the four-year period, there may be perfectly good answers for not reopening the same. But that would pertain to the merits of the matter that ought not to be considered in this extraordinary jurisdiction under Article 226 of the Constitution. The orders passed under Section 147 of the Act in respect of assessment years 2012-13 and 2013-14 are without jurisdiction as they do not comply with applicable condition indicated in the relevant proviso. Once an order u/s 147 is found to be without authority, the consequential notice under Section 148 of the Act has no legs to stand on and the matter or the assessment cannot be reopened in the absence of the statutory pre-condition being met.
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