TMI Blog2010 (5) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... A., DEVANI H. N. MS., JJ. JUDGMENT Ms. H. N. Devani J.- Rule. Mrs. M. M. Bhatt, learned senior standing counsel is directed to waive service of rule on behalf of the respondents. Since the controversy involved in the present petition lies in a very narrow compass, the matter is taken up for final hearing today. 2. This petition challenges notice dated October 28, 2009 issued by the respondent-Assessing Officer under section 148 of the Income-tax Act, 1961 (the Act) and seeks the following reliefs : Issue a writ of certiorari and/or a writ of mandamus and/or any other writ, direction or order to quash and set aside the impugned notice dated October 28, 2009 under section 148 of the Income-tax Act, 1961 annexed hereto at annexure I along with the preliminary order dated March 5, 2010 annexed hereto at annexure M for proceeding and completing the reassessment proceedings. Pending admission, hearing, and disposal of this petition, ad interim relief be granted and the respondent be ordered to restrain from enforcing compliance with the impugned notice dated October 28, 2009 at annexure I and/or taking any other steps in this regard including ex parte order or im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding that the respondent-Assessing Officer wants to reprocess the issues pertaining to section 115JB and deduction under section 80HHC of the Act which were already processed thoroughly at the time of scrutiny assessment under section 143(3) of the Act. It is submitted that the notice has been issued beyond a period of four years from the end of the relevant assessment year for which scrutiny assessment order under section 143(3) has already been framed. It is submitted that at the time of framing the assessment order the Assessing Officer has taken a conscious decision on both the issues of section 115JB and section 80HHC and that the reasons recorded for issuance of notice under section 148 indicate mere change of opinion on the same issues. It is submitted that there is no failure on the part of the petitioner in either filing return or furnishing all particulars truly and completely ; that the reasons recorded by the respondent are based on details and information filed by the petitioner. It is, accordingly, submitted that the issuance of notice and initiation of proceedings under section 147 read with section 148 of the Act are violative of the proviso to section 147 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have not disclosed fully and truly all material facts necessary for its assessment for that assessment year. That similarly, the reduced amount of deduction under section 80HHC would increase the amount of book profit of the petitioner as per section 115JB of the Act which had not been dealt with by the Assessing Officer in the original assessment order. As regards the contention raised by the petitioner that in the absence of any new information showing any escapement of income, the respondent lacks jurisdiction for reopening assessment, it is stated in the affidavit-in-reply that the return of income filed by the petitioner and the records of the assessment proceedings constitute tangible material to come to the conclusion that there was escapement of income from assessment. It is, accordingly, submitted that the petitioner having failed to disclose fully and truly all material facts necessary for its assessment, the respondent is justified in reopening the assessment in exercise of powers under section 147 of the Act. 8. Section 147 of the Act provides that if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na of decisions which have been referred to in the memo of petition that the duty which is cast upon the assessee is to make a true and full disclosure of the primary facts at the time of the original assessment. Production before the Assessing Officer of the account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure contemplated by law. The duty of the assessee in any case does not extend beyond making a true and full disclosure of primary facts. Once he has done that his duty ends. It is for the Assessing Officer to draw the correct inference from the primary facts. It is no responsibility of the assessee to advise the Assessing Officer with regard to the inference which he should draw from the primary facts. If an Assessing Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening assessment. The grounds or reasons which lead to the formation of the belief contemplated by the proviso to section 147 of the Act must have a material bearing on the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al assessment order, the claim of the deduction under section 80HHC of the Act was not examined from the angle that as per the provisions of section 80-IA(9), the petitioner had not reduced the deduction claimed under section 80-IA before computing deduction under section 80HHC. Similarly, according to the respondent, deduction under section 80HHC would increase the amount of book profit of the petitioner as per section 115JB of the Act which had not been dealt with by the predecessor-Assessing Officer in the original assessment order. Thus, in effect and substance, the respondent seeks to reopen the assessment mainly on the ground that while making the original assessment order, the predecessor-Assessing Officer had not examined certain issues from the angle desired by the present Assessing Officer. The opinion formed by the successor-Assessing Officer regarding escapement of income, is not based upon any new material or facts having come to his notice which is evident from the affidavit-in-reply made by the respondent wherein he has categorically stated that the return of income filed by the petitioner and the record of proceedings constitute tangible material to come to the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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