TMI Blog2018 (1) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... Sivagnanam, J. For the Petitioner : Mr. Kamal Sawhney for Mr. Arun Karthik Mohan For the Respondent : Mrs. Hema Muralikrishnan, Senior Panel Counsel ORDER Heard Mr.Kamal Sawhney, representing Mr.Arun Karthik Mohan, learned counsel for the petitioner and Mrs.Hema Muralikrishnan, learned Senior Panel Counsel for the respondent 2. This writ petition has been filed praying for issuance of writ of Certiorarified Mandamus to quash the notice issued by the respondent dated 27.02.2017 under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the Act ) and the order dated 13.07.2017, rejecting the petitioner s objection to the re-opening proceedings. 3.It may not be necessary for this Court to do a through f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted by the assessing officer of the petitioner. In the said Annexure, the assessing officer has clearly stated as to how the claim of the Revenue audit that ₹ 323.53 crore was to be treated as a revenue receipt is not correct and unacceptable. Thus, the matter should have been allowed to rest at that stage, but however, the assessing officer thought fit to issue the impugned notice under Section 148 of the Act. The petitioner sought for reasons for re-opening vide letter dated 03.03.2017. On such request, the assessing officer furnished the reasons for re-opening vide communication dated 10.03.2017. 5.What is interesting to note is that the reasons for re-opening is verbatim repetition of the audit objections filed by the audi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment has to be the reasonable belief of the Assessing Officer himself and cannot be an opinion and/or belief of some other authority. In fact, the Supreme Court in the matter of Indian Eastern Newspaper Society vs. CIT [1979] 119 ITR 996/2 Taxman 197 has held that whether an assessment has escaped assessment or not must be determined by the Assessing Officer himself. The Assessing Officer cannot blindly follow the opinion of an audit authority for the purpose of arriving at a belief that income has escaped assessment. In the present facts, it would be noticed that the reasons for which the assessment for the assessment year 2006-2007 is sought to be reopened by communication dated 12.10.2011 are identical to the objection of the audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held that the impugned re-opening proceedings is clearly a change of opinion and liable to be set aside. That apart, in the assessee s own case for the assessment year 2009-10, the Commissioner of Income-tax (Appeals) by order dated 19.06.2017, taking note of the objections filed by the CBDT to the audit report has held in favour of the assessee and the appeal has been allowed. As on date, it appears that no further appeal has been preferred by the Department. 9.Learned Senior Panel Counsel appearing for the respondents would vehemently contend that the petitioner should be relegated to avail alternate remedy provided under the Act. It is further submitted that circular referred to by the petitioner viz., Circular No.8/16 dated 17.03. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner stated that ₹ 1,700,000,000/- is not considered as income in the computation of total income. That apart, further clarification was called for by the assessing officer during the hearing on 10.07.2012 and the same was clarified by the petitioner vide letter dated 13.08.2012 and the clarification on the subject issue is as follows: 1.6 Schedule 17 Notes on Accounts Para 3: a) Loss on Sale of investment in Subsidiary Company Details furnished as Annexure-VI b) Provision made for diminution in the value of investment company written back; Provision made for Diminution in the value of investment in DBS Cholamandalam Distribution Limited during the preceding ass. Year (AY 2009-10) ₹ 2353.00 Lakhs. The same was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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