Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2018 (2) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (2) TMI 1473 - HC - Income TaxReopening of assessment - eligibility to deduction u/s 10B - eligibility of reasons to believe - change of opinion - Held that:- The assessment in question was framed without scrutiny when the assessee's return was accepted under section 143(1). AO had objections to the assessee's claim of deduction under section 10A of the Act. Similar claims made by the assessee for the assessment years 2009-2010 and 2011-2012 were not accepted by the Assessing Officer. CIT(Appeals) in both cases did allow the assessee's appeal upon which the Revenue had filed the appeals before the Tribunal and such appeals were pending when the Assessing Officer recorded the reasons and issued the impugned notice for reopening. As held by the Supreme Court in case of Assistant Commissioner of Income Tax v. Rajesh Jhaveri Stock Brokers P. Ltd. reported in (2007 (5) TMI 197 - SUPREME Court), in case where the original assessment is not framed after scrutiny, Assessing Officer cannot be stated to have formed any opinion and therefore, the concept of change of opinion would not apply. It is undisputedly true that despite such wider latitude available to the Assessing Officer to reopen the assessment, the requirement that he had reason to believe that income chargeable to tax had escaped assessment must still be fulfilled. In this context, Revenue's stand is that assessee's claim for deduction under section 10A is not eligible. That is how the Assessing Officer had framed the assessments for the assessment years 2009-2010 and 2011-2012 that is immediately preceding and succeeding the assessment years. When the Tribunal has allowed such claim of the assessee, Revenue is in appeal before the High Court. For the present year, under such circumstances, the reopening would have to be allowed. Mere ground that the Assessing Officer made a wrong reference to the issue before the High Court instead of Tribunal, would not shake the very foundation of the reasons recorded by the Assessing Officer. It was obviously and apparently an inadvertent error in referring to the forum before which such issue is pending. - Decided against assessee.
|