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TMI Blog2011 (5) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... of kerosene oil of the Indian Oil Corporation, and (b) plying tanker lorry under contract with the said oil company. The petitioner is being assessed to income-tax every year in respect of his business of wholesale dealership of kerosene oil and he is also being assessed under the provisions of section 44AE of the Act in respect of his business of plying tanker lorry. 5. The petitioner filed his return of income for the assessment year 2001-02 in respect of his income from oil business and also in respect of his business of plying tanker lorry under section 44AE of the Act together with the agricultural income receipts, copy whereof has been placed at annexure 1 of the writ petition. 6. It is stated that although in terms of the law as it existed, the deemed income arising from plying tanker lorry business would be at the rate of Rs.2,000 per month, i.e., Rs. 24,000 per annum per tanker, the petitioner possessing one tanker, returned a higher income of Rs. 35,500. The petitioner also filed proof of payment of advance tax of Rs. 10,000 and certificate showing tax deducted at source of Rs. 15,080 on the gross payment of Rs. 6,85,149, received in respect of the tanker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a separate business under section 44AE of the Act, the same was not required to be shown in the balance-sheet and for the same reasons, the income received from the oil company from the said business was not shown in the profit and loss account. It was also contended that the driver's expenses is not in relation to the lorry in question, rather it was in respect of other tankers carrying goods. As the petitioner had returned the income from the tanker lorry in excess of the amount prescribed under section 44AE of the Act which was accepted upon scrutiny, the same could not be a subject-matter of reinvestigation. The assessing authority passed the assessment order under section 143(3)/147 of the Act on December 18, 2007, placed at annexure 11 to the writ petition enhancing income returned by the petitioner by making the following additions : "(a) estimated value of the tanker lorry Rs. 1,50,000 (b) truck driver's expenses claimed by the petitioner Rs. 33,500" 12. The reasons assigned for making the aforesaid additions can be found in paragraphs 8 and 9 of the impugned order of reassessment, relevant portion whereof is being quoted hereinbelow for ready re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of mere change of opinion by the successor-in-office of the assessing authority. He submits that the power vested under section 148 of the Act cannot be exercised on mere presumption and/or upon having a different opinion on a given set of facts which existed even at the stage of passing of the original assessment order. 15. Learned counsel for the petitioner submits that although the notice initially was issued by recording three reasons as is manifest from annexure 7, but the assessing authority upon consideration of the matter did not choose to proceed with the reasons recorded by him in so far as it related to the income shown in the TDS certificate, as also the reasons as regarding the number of lorries not being reflected in the returns. He submits that the enhancement of income by addition of the value of lorry on a presumptive basis, not only runs counter to the provisions of section 44AE of the Act but is also based on assumptions and presumptions. In so far as the rejection of the driver's expenses is concerned, learned counsel submitted that the same is a mere change of opinion by the successor-in-office, inasmuch as, the assessing authority at the stage of the origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 148 of the Act. 19. Learned counsel appearing on behalf of the Department, in support of his submission, relied upon the following judgments of the Supreme Court reported in Phool Chand Bajrang Lal v. ITO [1993] 203 ITR 456 (SC) and Raymond Woollen Mills Ltd. v. ITO [1999] 236 ITR 34 (SC). 20 Learned counsel further submitted that the petitioner's petition to challenge the findings of the assessing authority under revision was not maintainable and in support of which, he relied upon a judgment of the Madras High Court reported in Kadri Mills (Coimbatore) Ltd. v. CIT [2000] 243 ITR 861 (Mad). 21. Learned counsel for the petitioner in response to the submissions of the counsel for the Department, submitted that there is no dispute as regarding the powers of reassessment vested in the assessing authority but while doing so, the assessing authority has to satisfy that the same is based on the information of a definite, specific and reliable nature and not being a mere change of opinion. He referred to the judgment of the Supreme Court on the issue reported in Gemini Leather Stores v. ITO [1975] 100 ITR 1 (SC) ; AIR 1975 SC 1268. 22. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessing authority raises three issues. 25. The assessing authority, passing the impugned order of assessment under section 147 while has accepted the explanation offered on behalf of the assessee as regarding non-mention of the income as reflected in the TDS, received from the oil company in relation to the tanker lorry in his books of account as also the answer that the assessee possessed only one tanker lorry, but he yet has proceeded to enhance the returned income of the petitioner by addition of the estimated value of the oil tanker at Rs.1,50,000 and by disallowing the driver's expenses of Rs. 33,500. 26. Section 148 of the Act is not designed for correction of errors. It has a definite purpose and has to be undertaken with a specific object of netting the escaped income. The foundation of such exercise has to be in the shape of information or materials which are definite in nature and not presumptuous or imaginary. The exercise of powers of special nature cannot be on mere suspicion or doubt in the minds of an assessing authority that certain income might have escaped notice at the stage of original assessment proceedings by the act of the assessee. &n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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