TMI Blog2017 (8) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... he closing of the proceedings on technical grounds, stated to be endorsed on 31.03.2002 and the Officers, who endorsed the same was very well aware that it will be a time barred assessment if anything is not done within the said date as already reassessment proceedings were commenced and the petitioner is being heard in the matter. Therefore, find that there is no fresh material in possession of the Assessing Officer suggesting escapement of the income at the time of issuance of notice dated 25.01.2001. Thus it is a clear case where the respondent is attempting to reopen a settled issue with no fresh materials and therefore, the impugned notice is wholly without jurisdiction as it is a mere change of opinion. - Decided in favour of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99, since the sale consideration was to be assessed in the previous years i.e., 1997-98, as the petitioner had entered into the agreement for 1996-97, the assessment for 1997-98 was reopened to consider the question of assessing the capital gains arising on the sale of agricultural lands. Therefore, the said consideration was not considered for taxability in the assessment year 1998-99. 5. Notice was issued under Section 148 of the Act dated 25.01.2001 for reassessment of the assessment made for the year 1997-98. The petitioner sought for reasons for reopening and the same were furnished by the respondent, which was priming on the ground that the lands sold were not agricultural lands. This was on the basis that the sale consideration re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s contention is that it is an admitted fact that the petitioner had filed its returns in compliance with the notice of reassessment issued at the first instance, summons were also issued and also acted upon. In terms of Section 153(2) of the Act such reassessment can be done within the period of limitation prescribed therein. Admittedly, within the said period, no action was initiated and consequently, any fresh proceedings taken ignoring the earlier notice is without jurisdiction. 8. Learned Standing counsel for respondent by referring to the counter affidavit filed by the respondent submitted that the earlier notice dated 25.01.2001 was dropped on 31.03.2002 for technical reasons, as recorded in the file wherein, it has been specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31.03.2002, stating that on technical grounds necessary approval will be obtained to issue Section 148 notice afresh and treated as technically dismissed. 11. The learned standing counsel for the respondent sought to sustain the impugned notice by referring to a judgment of the Division Bench of Punjab and Haryana High Court in the case of R.Kakkar Glass and Crockery House Vs. Commissioner of Income-Tax [2002 252 ITR 273 PH]. The Division Bench examined the issue as to whether a notice under Section 148 could be issued in respect of the same income for a second time. After noting the various distinguishing features, it was pointed out that when a notice is quashed on some technical ground, it would be in order to issue a fresh noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the same head or some other head, no fetters could be imposed on his power to issue a fresh notice. 13. On a careful perusal of the original file including the note file, it is evidently clear that there is no factual difference for reopening the assessment as proposed in the first notice and as presently proposed in the impugned notices. The only difference being the language, as the officers are different. The same documents which formed the basis for reasons for reopening and issuance of notice dated 25.01.2001 is identical to that of the reasons, which are set out for the issuance of the impugned notice. Further the petitioner was kept completely in the dark about the closing of the proceedings on technical grounds, stated to be e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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