Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2023 (2) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (2) TMI 719 - HC - Income TaxReopening of assessment u/s 147 - Change of opinion - case reopened beyond the period of four years - HELD THAT:- While the AO has made a plain statement that there was failure to disclose fully and truly the material facts, yet the AO has neither disclosed nor identified as to what were those material facts which were not disclosed in the earlier assessment proceedings. AO, on the other hand, did record in the reasons that the assessee had fled audited profit and loss account, balance-sheet and other details/schedules, however, short of admitting that the details with regard to reversed sale of TDR had been reflected documents and the return, proceeded to take shelter behind a non-existent excuse that the material facts were embedded in such a manner that the same could not be discovered with due diligence. As difficult to accept this plea inasmuch as all these details were contained in the return of income in the audited accounts and profit and loss statement, also explained in the notes attached to the auditor’s report, besides the communication issued by the AO pursuant to which the order of assessment u/s 143(3) came to be passed. There was no failure on the part of the petitioner to disclose fully and truly any material fact to the AO relevant to the assessment year 2015-16. An order of assessment u/s 143(3) having been passed must be deemed to have been passed after considering all material facts in regard to the queries raised which stood duly answered in terms of the judgment of the Full Bench decision of Delhi High Court in Commissioner of Income-tax Vs. Kelvinator of India Ltd [2002 (4) TMI 37 - DELHI HIGH COURT]. As stated that there was no new information received by the AO and reference was made to the notes attached to the annual accounts submitted by the assessee-company for the purposes of reopening. It is, thus, clear that no new information was received by the AO between the date of the order of assessment under section 143(3) till the issuance of the notice impugned u/s 148 of the Act. Therefore, the ratio of the judgment in Jindal Photo Films Ltd. [1998 (5) TMI 20 - DELHI HIGH COURT]. The Apex Court in Commissioner of Income Tax V/s. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT] held that there was a difference between ‘power to review’ and ‘power to reassess’ u/s 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. We have no hesitation in holding that both the jurisdictional conditions had not been satisfied by the AO in the reasons recorded on the touchstone of section 147 of the Act - Decided in favour of assessee.
|