TMI Blog2017 (12) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... n and an afterthought and in any event, the reopening sought to be effected is beyond the period of 4 years. In CIT v/s. Kelvinator of India Ltd. [ 2010 (1) TMI 11 - SUPREME COURT] it has been held by the Supreme Court that even within the period of 4 years there has to be tangible material on the basis of which assessment can be reopened. No justification for reopening the assessment. Lastly we express our displeasure at the conduct of the officer of revenue in issuing a fresh notice despite a binding decision in the case of the assessee and the law laid down by the Supreme Court. The revenue must reign in their officers in matters which have attained finality failing which costs thrown away may have to be imposed. The impugned order, therefore, cannot be sustained. - Decided in favour of assessee. - WRIT PETITION NO. 328 OF 2011 - - - Dated:- 20-12-2017 - A. S. OKA A. K. MENON, JJ. Mr. P.J. Pardiwala, Senior Counsel, a/w Jitendra Jain i/b. Atul K. Jasani for the Petitioner. Mr. Arvind Pinto for the Respondent. JUDGMENT(PER A. K.MENON, J.):- 1. By this writ petition under Article 226 of the Constitution of India the petitioners seek a writ of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same before the Tribunal. The assessee also filed a Cross Appeal on the ground that the AO had erred in resorting to reopening of the assessment. The Tribunal allowed the cross appeal, held that the order dated 29th December 2008 in reassessment proceedings was bad in law and dismissed the appeal by the revenue as being infructuous. 6. The Revenue challenged the said order of the Tribunal in this Court by filing Income Tax Appeal (L)No.2160 of 2010. Pending the said appeal, on 25th March, 2010 the petitioner once again received a notice under Section 148 of the Act dated 24th March, 2010 in respect of the Assessment Year 2005-06 seeking to reopen/reassess the completed scrutiny and reassessment proceedings. On 30th March, 2010 and on 19th April, 2010 the petitioner requested for the reasons recorded for reopening the assessment and also requested that the original return filed on 24th October, 2005 be treated as return filed in compliance with notice under Section 147. The reasons were furnished on 22nd April, 2010 stating that the set off of unabsorbed depreciation against book profit or Assessment Year 2005-06 is not in order since it had been set off against the book profit f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reason to believe that income has escaped assessment. On 31st December, 2010, the petitioner filed supplementary objections reiterating the decisions of the Supreme Court and this Court. The petitioner has impugned the notice dated 24th March, 2010 and the order rejecting objections of reassessment dated 24th December, 2010 as being contrary to law. 10. In an affidavit-in-reply filed on behalf of the respondents by one Pankaj Singhania, Deputy Commissioner of Income Tax, it is contended that the challenge in this petition is uncalled for and not justified. He has referred to chronology of events in paragraph 4 and contended that prior to notice under Section 148 then Assessment Officer has recorded reasons for reopening of the assessment as income chargeable to tax has escaped assessment and there was reason to believe so. According to the deponent, there is a clear link between the formation of an opinion that the income chargeable to tax has escaped assessment and the reasons recorded based on the material available on record. He contends that there is a prima facie mistake apparent on the record since the petitioner was not entitled to fetch double benefit on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment Year 2004-05 [ see (2010) 323 ITR 54 (Bom) ] holds that a mere change of opinion would not justify the Assessing Officer in seeking a recourse to the powers under Sections 147 and 148 unless there is tangible material before the Assessing Officer to prove that income chargeable to tax has escaped assessment. This Court further held, while allowing the petition, during the course of the assessment proceedings, that the Assessing Officer brought his mind to bear upon the questions involved and there was absence of tangible material on the basis of which assessment could have been reopened. 15. In the present case the very same assessment year was under consideration whereas this Court has already taken a view in the aforesaid assessee's case. There was no warrant for issue of further notice. It is evident that this has occasioned only as a change of opinion and an afterthought and in any event, the reopening sought to be effected is beyond the period of 4 years. In CIT v/s. Kelvinator of India Ltd. (2010) 320 ITR 561(SC) , it has been held by the Supreme Court that even within the period of 4 years there has to be tangible material on the basis of which assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
