2025 (7) TMI 607 - HC - Income Tax

Reopening of assessment u/s 147 - Reasons to believe - change of opinion - assessee did not reduce the entire foreign exchange gain from the actual cost of asset for claiming depreciation u/s 32 and deduction u/s 35; and that lump sum consideration paid towards technical know-how needed to be capitalised after allowing depreciation at 25% - also alleged that assessee did not prove that it had opted to choose either duty drawback or DEPB/DFRC and the rate of duty drawback was higher than DEPB during that period for the purposes of deduction u/s 80HHC HELD THAT - It is clear that details were duly furnished and after considering the same the original assessment proceedings have been concluded and an assessment order dated 29.12.2006 was passed under Section 143(3) of the Act. Subsequently Assessing Officer has also passed an order dated 19.2.2007 under Section 154 of the Act to make adjustment in respect of the deduction under Section 80HHC of the Act. It is therefore clear that the reopening is based purely on change of opinion. In Aroni Commercials Limited 2014 (2) TMI 659 - BOMBAY HIGH COURT while dealing with the provisions of Section 148 of the Act held that once a query is raised during the assessment proceedings and assessee has replied to it it follows that the query was subject matter of consideration of AO while completing the assessment and the same is deemed to have been accepted. We therefore agree with CIT(Appeals) as well as the ITAT that the reassessment proceedings were not valid and the reopening is based on change of opinion. Decided in favour of assessee.

Summary

1. ISSUES PRESENTED and CONSIDERED

The Court considered two substantial legal questions arising from the reopening of assessment under Section 147 of the Income-tax Act, 1961:

(i) Whether the reopening of the assessment was valid or was it based merely on a change of opinion, thereby rendering it invalid;

(ii) Whether the reopening of assessment within four years was justified solely on the Assessing Officer's reason to believe that income chargeable to tax had escaped assessment, without further requirements.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of Reopening of Assessment - Change of Opinion or Reason to Believe Income Escaped Assessment

Relevant Legal Framework and Precedents: Section 147 of the Income-tax Act empowers the Assessing Officer to reopen an assessment if he has "reason to believe" that income chargeable to tax has escaped assessment. However, the reopening cannot be based merely on a change of opinion after the original assessment has been completed. The Court relied heavily on the precedent set in Aroni Commercials Limited vs. Deputy Commissioner of Income-Tax, where it was held that if the Assessing Officer had raised specific queries during the original assessment and the assessee had responded, the issue was deemed to have been considered and accepted by the Assessing Officer. Therefore, reopening on the same issue would amount to a change of opinion, which is impermissible.

Court's Interpretation and Reasoning: The Court examined the facts that during the original assessment proceedings, the Assessing Officer had issued detailed questionnaires covering the very issues that were later cited as reasons for reopening. The assessee had furnished comprehensive replies, which were considered before the original assessment was finalized. The original assessment order and subsequent rectification under Section 154 further demonstrated that the Assessing Officer had fully dealt with the matters.

The Court emphasized that the reopening notice dated 17.3.2009 was issued on grounds that the assessee had not reduced foreign exchange gains from the cost of assets for depreciation, had not capitalized lump sum payments for technical know-how, and had not adequately proved conditions for export incentive deductions under Section 80HHC. However, all these points had been raised and addressed during the original assessment.

Key Evidence and Findings: The Assessing Officer's own records showed that queries on R&D expenditure under Section 35, royalty payments and lump sum fees, and export deductions under Section 80HHC were raised and replied to by the assessee. The original assessment order dated 29.12.2006 and the rectification order dated 19.2.2007 confirmed that these matters were considered and decided.

Application of Law to Facts: Since the Assessing Officer had already considered the issues and passed the original assessment order, the reopening was found to be based on a mere change of opinion rather than fresh reason to believe. The Court held that change of opinion is not a valid ground for reopening under Section 147.

Treatment of Competing Arguments: The Revenue argued that reopening within four years was justified since the Assessing Officer had reason to believe income had escaped assessment. The Court rejected this, holding that mere timing within four years does not validate reopening if the reason is a change of opinion. The Court relied on the precedent from Aroni Commercials Limited, emphasizing that the Assessing Officer's consideration of the issues during the original assessment precludes reopening on the same grounds.

Conclusions: The reopening of assessment was invalid as it was based on a change of opinion, not on fresh reasons to believe that income had escaped assessment.

Issue 2: Sufficiency of Reason to Believe for Reopening Within Four Years

Relevant Legal Framework: Section 147 permits reopening within four years if the Assessing Officer has reason to believe income chargeable to tax has escaped assessment. The law does not require formal proof beyond the reason to believe but mandates that the reason must not be a mere change of opinion.

Court's Interpretation and Reasoning: The Court acknowledged that reopening within four years is permissible if the Assessing Officer has a genuine reason to believe. However, the reason to believe must be based on new material or facts not previously considered. If the Assessing Officer had already considered the material during the original assessment, then the reason to believe is invalid.

Key Evidence and Findings: The Assessing Officer's own records showed that all relevant facts were before him during the original assessment. The detailed queries and responses demonstrated that the issues were not newly discovered but had been examined and decided.

Application of Law to Facts: The reopening notice relied on the same facts that had been considered earlier, thus the reason to believe was not genuine but a change of opinion. Therefore, the reopening was not justified even though it was within the four-year period.

Treatment of Competing Arguments: The Revenue contended that the mere existence of a reason to believe within four years sufficed. The Court distinguished this by emphasizing the quality and novelty of the reason to believe, rejecting reopening based solely on re-examination of already considered facts.

Conclusions: The reopening was improper despite being within four years because the reason to believe was not based on new or fresh material but on a change of opinion.

3. SIGNIFICANT HOLDINGS

The Court held that:

"Once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query was subject matter of consideration of Assessing Officer while completing the assessment and the same is deemed to have been accepted."

"The reopening of the assessment by impugned notice dated ... is merely on the basis of change of opinion of the Assessing Officer from that held earlier during the course of assessment proceeding ... This change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment."

Core principles established include:

• Reopening under Section 147 must be based on genuine, fresh reasons to believe, not on mere change of opinion.
• Consideration of an issue during original assessment, including raising queries and receiving responses, precludes reopening on the same issue.
• Assessment orders need not record detailed satisfaction on every query, but the Assessing Officer's consideration is implied where queries were raised and answered.
• Reopening within four years is not automatically valid; the reason to believe must be substantiated by new material.

Final determinations:

• The reopening of the assessment under Section 147 was invalid as it was based on a change of opinion.
• The Tribunal and Commissioner of Income Tax (Appeals) were correct in holding the reassessment proceedings invalid.
• The appeal by Revenue was dismissed with no order as to costs.