TMI Blog2014 (7) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... 36(1)(viii) of the Act. Also in Commissioner of Income Tax v/s. Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT OF INDIA] it has been held that it is not open to the Revenue to re-open an Assessment on the basis of mere change of opinion – AO has no power to review under the shelter of re-opening of Assessment u/s 147/148 of the act - only because the conclusion arrived at earlier is erroneous would amount re-viewing the same material to come to possibly a different conclusion – AO has allowed the deduction under Section 36(1)(viii) of the Act - It is not open to re-look at the same material only because it is subsequently of the view that the conclusion arrived at earlier, is erroneous – Decided in favour of Assessee. - Writ Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter granting the benefit of deduction under Section 36(1)(viii) of the Act completed the Assessment proceeding under Section 143(3) of the Act on 22nd March 2002 determining the total income at ₹ 239.91 Crores. 3. On 29th March 2004, the impugned notice was issued under Section 148 of the Act, seeking to re-open the Assessment for the Assessment Year 1999-2000. The reasons in support of the impugned notice dated 24th March 2004 as made available to the Petitioner reads as under:- M/s. HDFC Ltd. A. Y. 99-2000 Date: 22/3/2004 The return of income was filed on 31/12/99 declaring total income of ₹ 135,53,03,006/-. The assessment was completed u/s. 143(3) on 22/3/2002 at total income of ₹ 239,91,38,121/-. The addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the end of the relevant assessment year. Therefore, if any mistake has occurred then reassessment proceedings are valid and not ab-inito void as alleged by you. (emphasis supplied) 5. The re-opening of the Assessment was within a period of four years from the end of the relevant Assessment Year i.e. 1999-2000. At the time of admission of the Petition, the reasons for re-opening of the Assessment as furnished by the Assessing Officer was found not comprehensible by the Court and in that view,the Revenue was granted time to enable filing of affidavit to throw light on the reasons recorded for re-opening of the Assessment by the impugned notice dated 29th March 2004. The Revenue took time but failed to file any affidavit in reply exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue to correct the errors/mistakes which may have taken while passing the Assessment Order originally. 7. As against the above, Mr. Suresh Kumar, learned Counsel appearing for the Revenue in support of the impugned notice dated 29th March 2004 submits as under:- (a) The Assessment which is sought to be re-opened is within four years from the end of the relevant Assessment Year. Therefore, it is open to the Revenue to issue the impugned notice for re-opening of the Assessment; (b) According to the Revenue, there was a mistake in passing original Assessment Order dated 22nd March 2002 which led to the assessee being granted higher deduction then which they were entitled to ; and (c) It is submitted that in absence of adopting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to Revenue was by mistake. Although various other submissions had been made by Mr. Dastoor, learned Senior Counsel, appearing of the Petitioner, we are of the view that the Petition can be disposed of on the short point that it is not open to the Assessing Officer to re-open the Assessment merely on a change of opinion. It is not disputed that the Assessing Officer had applied his mind to the material available before him for purposes of considering the claim for deduction under Section 36(1)(viii) of the Act. However, the Revenue submits that the result of the application of mind was an error/mistake. Therefore, it has to be corrected. It is urged that the Revenue should not be precluded from re-opening a completed Assessment by issuin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
