TMI Blog2004 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent, whereby in exercise of powers under section 147 of the Income-tax Act, 1961 (hereinafter referred to as the "Act"), the Assessing Officer reopened the assessment, and ultimately, made the reassessment for the years 1996-97 and 1997-98. The petitioner is a company which is engaged in the business of travel agency as a tour operator and is providing related services. The service rendered by the petitioner includes booking with hotels, airlines, railways and other transporters for tourists. For rendering such services, the petitioner receives commission from airlines. For the year ending on March 31, 1996 as also March 31, 1997, returns declaring income of Rs. 2,63,32,380 and Rs. 3,18,17,220 were filed on November 29, 1996 and November 28, 1997, respectively. In the computation of the income for the aforesaid assessment years, claim was made under section 80HHD of the Act. For the assessment year 1996-97 a deduction of Rs. 7,12,62,547 and for the assessment year 1997-98 deduction of Rs. 7,90,29,899 was claimed. It is the case of the petitioner that the returns as required by sub-section (6) of section 80HHD were accompanied by the report of the chartered accountan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax (Appeals) disposed of the appeal on August 28, 2001, and, thereafter, no further appeals have been preferred on this issue by either side. It is, thereafter, on March 24, 2003, i.e., after the expiry of more than four years from the end of the relevant assessment year, that notices were issued under section 148 of the Act for the assessment years, inter alia, stating that the Assessing Officer had reason to believe that the petitioner's income for the respective years has escaped assessment within the meaning of section 147 of the Act. The notices are produced at annexure P8. In response to the same, the petitioner on or about April 10, 2004 (2003?), refiled a copy of the original income-tax return, inter alia, requesting the same may be treated in compliance with the notices. The request was also made to furnish the reasons recorded. On May 19, 2003, the respondent furnished the reasons. For the assessment year 1996-97, the reasons recorded are as under: "During the financial year relevant to the assessment year 1996-97, the assessee had received foreign exchange receipts of Rs. 86.97 crores out of which Rs. 24.88 crores were in respect of receipts, for which certificates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 18, 2003, issued direction in view of the decision of the Supreme Court in the case of GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19 to dispose of the objections filed by the petitioner with regard to his jurisdiction to reopen the assessment under section 147/148 of the Act, by a speaking order, before proceeding with the reassessment proceedings. It is required to be noted that instead of passing a separate speaking order on the objections raised, in gross violation of the order made by this court a regular order of assessment was passed. The said assessment orders were again challenged by the petitioner since the Assessing Officer, instead of passing a speaking order before proceeding with the reassessment proceedings in respect of the assessment of the relevant years, made the assessment and passed the order. The court on March 10, 2004, disposed of the writ petition by setting aside the assessment orders with the direction to the Assessing Officer to pass a speaking order within a period of eight weeks. It is, thereafter, the Assessing Officer made the speaking order and that is under challenge before this court. The said order was made on April 27, 2004. Immediat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the primary facts, namely, the claim made by the assessee, the circumstances under which the claim was made and the provisions of law which could be applied while granting the benefits. A decision may be wrong or right is none of the concern of the subsequent officer. If the primary facts were not available or there was concealment or there was no application of the mind at all then, a case for reopening the assessment could be made out. But, when all the facts were placed before the Assessing Officer and the Assessing Officer consciously considered the facts and arrived at a decision, then can it be reopened merely because subsequently he changes his opinion or some other officer takes a different view? We think not. Our attention was invited to the decision of the case, namely, Sheth Brothers v. Joint CIT [2001] 251 ITR 270 (Guj) which points out as to the manner in which the Assessing Officer is required to proceed while making an assessment. While allowing the petition in the case of Sheth Brothers [2001] 251 ITR 270 (Guj), the court pointed out the decision of the Supreme Court in the case of Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191 wherein it was pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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