TMI Blog2012 (6) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... essment or reassessment has long expired, the Revenue cannot turn round, take recourse to an extraordinary provision which is section 147 and attempt to reopen concluded assessments. If such exercise is permitted that would be quite contrary to the intention of the Act. - Decided in favor of assessee. - 265 of 2006 - - - Dated:- 30-6-2010 - JUDGMENT I. P. Mukerji J.- 1. This writ challenges several notices, all dated February 15, 2005, under section 148 of the Income-tax Act, 1961 (hereafter "the Act"), covering the assessment years 1998-99, 1999-2000, 2000-01 and 2001-02. It also challenges an order dated December 29, 2005, by the income-tax authority negativing the objection made by the writ petitioner- assessee against the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 80-IB(5) of the Act. Hence, according to the Revenue the grounds for reopening assessment under section 147 have been made out and notices were appropriately issued. 5. According to the writ petitioner-assessee, they had always been treated as manufacturer of cattle and poultry feed by the Revenue in past assess- ments, which include scrutiny assessment. There is description of the writ petitioner-assessee by the Assessing Officer as a manufacturer of such feed. Therefore, on such satisfaction assessments were made for those years. Therefore, on the date when the said notice under section 148 of the Act was issued, there was no scope for any change of opinion for reopening the assessment. It was urged before me that this question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. Therefore, according to the submission of Mr. Chowdhury, the decision rendered after receiving the objection to the section 148 notice was pro- perly made and that the Revenue should be permitted to proceed with the assessment. 9. The detailed submissions of the counsel are reflected in the discussion made below : 10. Discussion and findings Ordinarily, if the time to make assessment expires and there is no assessment at all or there has been an assessment, but that assessment is erroneous, the assessment cannot be reopened at all. It becomes final between the assessee and the Revenue. In appropriate circumstances such assessment can be reopened under section 147. Such circumstance is if the Assessing Officer entertains a bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch 28, 2003. In the data, which is entered just above, the assessment order in a set format, as per usual practice, against item No. 10 which relates to nature of business, it is stated "manufacturing of animal feeds and chicks". The following is recorded in the assessment order "The assessee was engaged in the business of manufacturing of poultry feeds during the year under consideration. It was found from the record that the assessee has four manufacturing units at Dum Dum and Howrah in West Bengal, Haipur in Bihar and at Bhiwadi in Rajasthan. The assessee's industrial undertaking at Hazipur is situated in a notified backward District of Vaishali in Bihar. The unit commenced commercial production in the assessment year 1998-99. In respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction and all issues connected therewith were properly before the Assessing Officer, in the assessment years which are sought to be reopened. For whatever reason best known to the Assessing Officer, assessments were made on the footing that the writ petitioner-assessee was a manufacturer of poultry and animal feed and entitled to deduction under section 80-IB. 15. The law regarding reopening of assessment is very strict. If an assessment could have been done but has not been done or erroneously done it cannot be done after expiry of the prescribed time limit. Exception can be made in very special circumstances. One of them, as I have stated earlier, being "escapement of income". Linked to this is the principle that a change of opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piry of time the Assessing Officer can reopen assessments. That would plainly be against the statutory policy. 17. Further, before parting with this matter a case cited by the learned coun- sel for the Revenue CIT v. Venkateswara Hatcheries P. Ltd. reported in [1999] 237 ITR 174 (SC) ; AIR 1999 SC 1225 has to be noticed. That deci- sion was concerned with the consideration of the business of a hatchery as manufacture. It said that in a hatchery there was no manufacture as birth of chicks could not be said to be manufacture. As I am not going into the merits of the matter this decision is not relevant in the facts of the case. 18. Therefore, the impugned notice and proceedings in prayer (a) of the petition are quashed and set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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