TMI Blog2012 (7) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent: Mr Vimal Gupta Adv. JUDGEMENT Per: M S Sanklecha: Rule. Rule made returnable forthwith. Counsel for the respondents waives service. At the instance of and request of the parties, the petition is taken up for final hearing. 2. By this petition under Article 226 of the Constitution of India, the petitioner challenges a notice dated 29th November,2010 under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the said Act) and the order dated 4th November, 2011 rejecting the petitioner s objection to initiation of proceeding under Section 147/148 of the said Act. 3. The relevant facts are as under: a) By an order dated 18th December, 2006 passed under Section 143(3) of the said Act the assessing officer viz. Deputy Commissioner of Income Tax (Respondent No.1) assessed the Petitioner to a total income of Rs.91.49 lacs for the Assessment year 2004-05. b) On 29th November, 2010 the Respondent No.1 issued a notice under Section 148 of the said Act seeking to reopen the assessment for the Assessment year 2004-05. On 5th January 2011 the Respondent No.1 furnished to the Petitioner the reasons recorded by him for issuing notice dated 29th November, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1 rejected the petitioner s objection to initiation of proceedings under Section 147/148 of the said Act by recording as under: 2. In this connection it is stated that the objection raised by you is not acceptable as a) Depreciation of Rs.9,12,412/- is erroneously allowed, as in tangible asset on goodwill. b) The set off of unabsorbed depreciation, brought forward from A.Y. 2001-02, has been erroneously allowed at Rs.16,23,554/-. 3. You are therefore requested to attend/comply the enclosed notice u/s. 142(1) and co-operate to complete the assessment proceedings. (e) The Petitioner has challenged the above proceeding by the Respondent as being without jurisdiction. The Respondents have filed an affidavit in reply dated 16th January,2012 justifying the reopening of asssement for the Assessment year 2004-05. 4. In support of the Petition Mr. S.N. Inamdar, Senior Counsel submits 1) initiation of reopening under Section 148 of the said Act by Notice dated 29th November 2010 is completely without jurisdiction as the condition precedent to reopen assessment after the end of 4 years from the end of the relevant Assessment year in terms of proviso to Section 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h November 2010 issued under Section-148 of the said Act has been issued more than four years after the end of the relevant assessment year i.e. Assessment Year 2004-05. In terms of the proviso to Section 147of the said Act the jurisdiction to reopen assessments already completed under Section 143(3) of the said Act, after the period of four years from the end of the relevant assessment year can only be exercised on the cumulative satisfaction of two conditions precedent as under: (a) there must be a reasonable belief on the part of the officer that income has escaped assessment; and (b) that there must be a failure on the part of the petitioner to fully and truly disclose all material facts necessary for assessment. 7. In the present facts the grounds/reasons supplied to the petitioner on 5th January 2011 for reopening the assessment for Assessment Year 2004-05 under Section 148 of the said Act do not indicate any failure on the part of the petitioner to disclose fully and truly all material facts necessary for assessment. Further neither the reasons recorded for reopening the assessment nor the order dated 4th November, 2011 indicate that respondent No.1 is relying upon any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches to the Court, on the strength of affidavit or roal submissions advanced . Therefore, the jurisdictional requirement is itself not satisfied while issuing a notice under Section 148 of the said Act on 29th November, 2010. 8. In fact, the ground for reopening of the assessment is only that earlier assessment allowing depreciation on goodwill and set off of unabsorbed depreciation was erroneous. This would amount to a mere change of opinion and would not give jurisdiction to reopen the concluded assessment. Correcting an erroneous view taken on the self same material is certainly a review and not permissible under Section 147 of the said Act. The Supreme Court in the matter of CIT v. Kelvinator of India reported in 320 ITR 561 has held that there is conceptual difference between power to review and power to reassess. The power under Section 147 of the said Act is the power to reassess and not the power to review. 9. It was submitted that the issue regarding depreciation on goodwill and set off of unabsorbed depreciation was an issue considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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