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TMI Blog2015 (12) TMI 1468X X X X Extracts X X X X X X X X Extracts X X X X ..... pen the assessment of the petitioner assessee for assessment year 2008-09. Having regard to the view that the court is inclined to take in the matter as delineated herein below, it is not necessary to refer to the facts and contentions in detail. 2. The petitioner, a public limited company and a scheduled Bank, filed its return of income for assessment year 2008-09 on 24th September, 2008 along with statement of income and relevant annexures thereto including the Tax Audit Report. The petitioner's return was selected for scrutiny assessment. During the course of assessment, the Assessing Officer issued notice under section 142(1) of the Act and called for certain details from the petitioner from time to time, pursuant to which, explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is without any authority of law. In support of such submission the learned counsel placed reliance upon the decision of this court in the case of Adani Exports v. Deputy Commissioner of Income-tax (Assessment), (1999) 240 ITR 224. Various other submissions were also advanced, however, for the reasons that follow, it is not necessary to refer or deal with the same. 4. In response to the oral directions issued by this court, Mr. M.R. Bhatt, Senior Advocate, learned counsel for the respondents has produced the original record relating to the proceedings under section 147 of the Act for the perusal of this court. A perusal of the file shows that the Audit Officer had raised certain objections as recorded in the reasons for reopening the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -99, in the assessee's own case, this High Court has decided in favour of the assessee after considering the CBDT Instruction No.17/2008 dated 26th November, 2008. It was again reiterated that the objection raised by the Audit is factually wrong and the same may kindly be dropped. Since the Audit Department still persisted with the audit objection, the second respondent by a communication dated 21st January, 2013 addressed to the Additional Commissioner of Income-Tax, called upon him to direct the Assessing Officer to initiate proceedings under section 147 after obtaining prior sanction under section 151 of the Act. Ultimately, with a view to comply with the audit objection, the Assessing Officer initiated proceedings under section 147 by r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n would be ultra vires the provisions of law and would be abuse of such authority. As the aforesaid decision of the Supreme Court indicates that though audit objection may serve as information, the basis of which the ITO can act, ultimate action must depend directly and solely on the formation of belief by the ITO on his own where such information passed on to him by the audit that income has escaped assessment. In the present case, by scrupulously analysing the audit objection in great detail, the AO has demonstrably shown to have held the belief prior to the issuance of notice as well as after the issuance of notice that the original assessment was not erroneous and so far as he was concerned he did not believe at any time that income has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed assessment. In fact, after the audit party brought the relevant aspects to the notice of the AO, she held correspondence with the assessee. Taking into account the assessee's explanation regarding non-requirement of TDS collection and ultimately accepted the explanation concluding that in view of the Board's circular, tax was not required to be deducted at source. No income had, therefore, escaped assessment. Despite such opinion of the AO, when ultimately the impugned notice came to be issued the only conclusion we can reach is that the AO had acted at the behest of and on the insistence of the audit party. It is well-settled that it is only the AO whose opinion with respect to the income escaping assessment would be relevant for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that no case has been made out for reopening of the assessment and that the objection raised by the Audit was not acceptable. However, it is only on account of the persistence of the Audit Department, that the Assessing Officer has reopened the assessment for the assessment year under consideration by issuing notice under section 148 of the Act. Clearly, therefore, the Assessing Officer has not formed any belief that income chargeable to tax has escaped assessment and on the contrary, is of the opinion that there is no cause for reopening the assessment; however, he has sought to reopen assessment only upon the insistence of the Audit Department. Under the circumstances, the primary requirement for reopening the assessment under se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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