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TMI Blog2018 (4) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... r non-deduction of tax at source u/s. 194J of the Act. 2. 1. Regarding the international roaming charges, the AO stated that the provisions of section 195 were much wider than any other section dealing with tax deducted at source applicable for the residents, that if the resident considered that any sum payable or part of the sum payable was not liable for deduction of tax at source it could obtain an order u/s. 195 (2) of the Act, that the assessee did not obtain the order under that section. On the legal issue of deducting of tax at source on international roaming charges, the AO observed that the department had preferred an appeal before the Hon'ble Supreme Court in the case of Bharti Cellular Ltd, that the Hon'ble Court had directed the Department to establish that any human interference was required for international roaming, that the matter of international roaming had not reached finality. He relied upon the case of Skycell of Hon'ble Madras High Court and held that the case was not reversed by the Hon'ble Supreme Court . Finally, he held that roaming charges were not in the nature of fee for technical services u/s. 194J, that tax was to be deducted at sourc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere change of opinion, that u/s. 147 it was not permissible to restore the reassessment proceedings on change of opinion, that the AO himself had admitted that he was reopening the assessment on the basis of the profit and loss account filed for the year under consideration, that the impugned roaming charges were reflected in the profit and loss account, that the account was subject to original scrutiny assessment, that the AO had asked the assessee to submit complete details relating to roaming charges, that the disputed issue was given full consideration at the time of original scrutiny, that the AO had not brought out anything to indicate that apart from the details filed along with the return (the profit and loss account and the details omitted by the assessee during the course of original assessment), he had any other tangible material that led him to the conclusion that income had escaped assessment. Finally, he held that the AO was not justified in reopening the assessment for the year under consideration. 2. 3. Before us, the Departmental Representative (DR) supported the order of the AO and stated that the AO had also made a reference to the provisions of section 40(a)(i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Ltd for assessment year 2008-09 within the meaning of section 147 of the IT Act. " 2. 5. Reassessing the escaped income of an assessee is not a new concept of tax jurisprudence. Courts are of the view that income that has escaped assessment should be brought to taxation, even if the regular assessment was completed u/s. 143(3)of the Act. But, courts are also of the firm view that reassessment should not be a result of change of opinion of the AO and that there should be some fresh material to initiate reassessment proceedings. As early as year 1943, in the case of Mohanlal Choradiya(11 ITR 352), the Hon'ble Madras High Court held that the Income-tax Officer can change his view, but it should be for some reason or on any fresh material and not on account of a mere change of opinion. In the case of Kedarnath(15 ITR 224), the Hon'ble Allahabad High Court held that a mere change of opinion based on same facts and figures would vitiate the reassessment proceedings. In the case of Ananthlaxmi Ammal the Hon'ble Madras High Court (28 ITR 252)had held as under: "Section 34 was enacted both in the interests of the State and the subject. If it is necessary to prevent evasion of tax, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing order u/s. 143(3) of the Act. Subsequently, invoking section 147 of the Act, that income had escaped assessment, he issued notice u/s. 148 for reassessment. The reasons recorded by him were that the assessee's claims of deductions on account of sums under the provision of sales return could not have been claimed by the assessee since the liability was neither known nor accrued and that the claims of deduction u/s. 36(1)(viii) on account of bad and doubtful debts written off were not valid claims. On a writ petition, the Hon'ble Court held as follows: ".... . that the notice for reopening could not have been issued. It was not the legal belief of the Assessing Officer that income had escaped assessment but was compelled to issue notice which was wholly impermissible under law. that the AO had made partial disallowances of the assessee's claims of deduction of bad and doubtful debts only after detailed and minute scrutiny of materials. Therefore, he could not be permitted to reopen the assessment as the reopening would be based on mere change of opinion.......... . Where the initial assessment has taken place u/s. 143(3) of the Income-tax Act, 1961with the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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