TMI Blog2013 (7) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment due to the failure on the part of the assessee to disclose truly and fully all material facts in cases other than in case of non filing of the returns, is absent – appeal decided against the department. - Tax Appeal No. 351 of 2013 - - - Dated:- 15-4-2013 - AKIL KURESHI AND MS. SONIA GOKANI, JJ. For the Appellant : Varun K. Patel. For the Respondent : None. ORDER:- PER : MR.JUSTICE AKIL KURESHI Revenue is in appeal against the judgment of the Income Tax Appellate Tribunal [ Tribunal for short] dated 5th October 2012, raising following question for our consideration :- Whether in the facts and circumstances of the case, the learned ITAT has erred in law in confirming the order of CIT {A} in holding the reopening of assessment u/s. 147 by issuing notice u/s. 148 of the Income Tax Act as invalid ? As can be seen from the question itself, the issue pertains to validity of a notice issued by the Assessing Officer under Section 148 of the Income-tax Act, 1961 [ Act for short]. Through such notice issued within a period of four years from the end of the relevant assessment year, he sought to reopen scrutiny assessment of the respondent-assessee f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no notice can be issued under Section 148 of the I.T Act. Regarding the first two objections we find that in the course of original assessment proceedings, the Assessing Officer has made proper queries regarding valuation of closing stock as well as regarding disallowance to be made u/s. 14A and on both the counts, reply were submitted by the assessee before the Assessing Officer in course of original assessment proceedings and thereafter, the assessment was completed by the A.O u/s. 143 (3) and therefore, it is abundantly clear that opinion was made by the Assessing Officer in course of original was made by the Assessing Officer in course of original assessment proceedings on the basis of queries and its reply and no new material has been indicated which has come to the notice of the Assessing Officer for reopening. Hence, in our considered opinion, in the facts of the present case, the reopening is on the basis of mere change of opinion which is not permissible as per law. It has been so held by Honble Apex Court in the case of CIT v. Kelvinator of India Limited [Supra]. It is held by Honble Apex Court in that if the concept of change of opinion is removed as contended on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the return filed, has some doubt about eligibility of such a claim and therefore, raises queries, extracts response from the assessee, thereafter in what manner such claim should be treated in the final order of assessment, is an issue on which the assessee would have no control whatsoever. Whether the Assessing Officer allows such a claim, rejects such a claim or partially allows and partially rejects the claim, are all options available with the Assessing Officer, over which the assessee beyond trying to persuade the Assessing Officer, would have no control whatsoever. Therefore, while framing the assessment, allowing the claim fully or partially, in what manner the assessment order should be framed, is totally beyond the control of the assessee. If the Assessing Officer, therefore, after scrutinizing the claim minutely during the assessment proceedings, does not reject such a claim, but chooses not to give any reasons for such a course of action that he adopts, it can hardly be stated that he did not form an opinion on such a claim. It is not unknown that assessments of larger corporations in the modern day, involve large number of complex claims, voluminous material, numer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under Section 148 of the Act cannot be issued. With this conclusion, we are in respectful agreement. Chapter XII-H pertaining to Income-tax on Fringe benefits was introduced by the Finance Act 2005 with effect from 1st April 2006. Section 115W contains definition of the terms employer and fringe benefit tax. Section 115WA pertains to charge of fringe benefit tax. Sub-section (1) thereof provides that in addition to the income-tax charged under the Act, there shall be charged, additional income-tax in respect of the fringe benefits provided or deemed to have been provided by an employer to his employees during the previous year at the rate of thirty per cent on the value of such fringe benefits. Section 115WB pertains to fringe benefits which would invite such a tax. Section 115WC provides for ascertaining value of fringe benefits. Section 115WD requires every employer, who during a previous year has paid, or made provision for payment of fringe benefits to his employees to furnish a return of fringe benefits to the Assessing Officer in the prescribed form. Section 115WE pertains to the assessment of such returns of fringe benefits. Sub-section (2) of the said section authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for assessment of the fringe benefits escaping assessment. Correspondingly, Section 115WH provides for issuance of notice for such purpose. Such provisions being special provisions, made especially for the purpose of fringe benefits tax, the Tribunal was perfectly justified in concluding that the general provisions contained in Section 148 of the Act cannot be resorted to in such cases. Significantly, Section 115WH; unlike proviso to Section 147 of the Act, does not recognize any distinction between notice for reopening issued within and beyond the period of four years from the end of relevant assessment year; except for requiring that in cases of notice issued beyond four years, there has to be a satisfaction of the Commissioner or the Chief Commissioner, arrived at on the reasons recorded by the Assessing Officer that it is a fit case for issuance of the notice. In other words, the crucial requirement under proviso to Section 147 of the Act for issuing notice beyond four years from the end of relevant assessment year of income escaping the assessment due to the failure on the part of the assessee to disclose truly and fully all material facts in cases other than in case of non ..... X X X X Extracts X X X X X X X X Extracts X X X X
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