TMI Blog2012 (3) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 148 of the Act - contention of the petitioner is that there was delay and failure to supply the exact reasons recorded by the Assessing Officer - reasons recorded by the AO for reopening was that the assessee is not offering its income earned on infrastructure utilization Fund (IUF) and interest earned thereon in its income chargeable to tax - The contention of the petitioner is that the amount deposited in the aforesaid fund is not income of the assessee and reasons to believe are a mere reason to suspect or surmise and do not disclose or state that there has been under assessment of income - Held that :- there were no original assessment proceedings and no notice under section 143(2) was issued. The time for issue notice under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner filed revised return on 22nd December, 2002. 3. The return filed by the assessee was not taken up for scrutiny and no notice under Section 143(2) was issued. 4. Subsequently, the impugned notice under Section 148 dated 16th April, 2003 was issued and served on the petitioner. By letter dated 6th May, 2003, the petitioner informed the respondent that the return filed on 22nd February, 2002 may be treated as return filed in response to this notice. The petitioner asked for furnishing of reasons to believe recorded in writing before issue of notice under Section 148 of the Act. The contention of the petitioner is that there was delay and failure to supply the exact reasons recorded by the Assessing Officer. The petitioner was not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elieve that income to the tune of Rs.19,43,69,995/- has escaped assessment. Hence, it is, requested that permission to issue notice u/s 148 may be granted in this case. 7. The contention of the petitioner is that the amount deposited in the aforesaid fund namely Transport Infrastructure Utilisation Fund (TIUF, for short) and interest earned thereon is not income of the assessee and, therefore, reasons to believe are a mere reason to suspect or surmise and do not disclose or state that there has been under assessment of income. It is further submitted that taxability of TIUF was subject matter in other assessment years including assessment years 1990-91 and 1991-92 and the issue has been decided in favour of the petitioner. 8. Taxabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est on the said amount to tax but had not taxed the amount transferred to TIUF. Reopening notice was questioned on the ground that it was case of change of opinion as the said aspect had been examined in the original assessment proceedings. Reopening, it is settled, is not permissible on the ground of change of opinion as the Assessing Officer does not have power of review (see Commissioner of Income Tax, Delhi v. Kelvinator of India Limited, (2010) 2 SCC 723). The High Court while allowing W.P.(C) No. 13603/2004, had specifically noted that they had only examined and considered matter from the aforesaid aspect and from the point of view of jurisdiction to reopen and had not examined the merits of the issue with regard to the taxability of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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