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TMI Blog2019 (3) TMI 1607X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. Departmental Representative (DR), Sh. Charan Dass, during hearing, was that there is no discussion on some of the grounds on which the reopening of the assessment, framed in the first instance u/s. 143(3) (vide order dated 13.04.2009/copy on record), viz. disallowance u/s. 14A. In fact, even on other grounds - the reopening having been initiated on four different grounds, as, for example, under-valuation of stock of paddy; concealment of husk produced, there is no discussion in the assessment order, indicating overlooking of the relevant aspect/facts having a direct bearing on the assessee's income for the relevant year. The same would not preclude reassessment, which stands initiated within four years from the end of the relevant assessment year. That the relevant information was already on record, or could have been obtained at the time of the original assessment from an investigation of the material on record, or the facts disclosed thereby, or from an enquiry or search into facts or law, but was not in fact obtained, would not affect the jurisdiction of the Assessing Officer (AO) to reopen a concluded assessment. The law in the matter is well-settled, for which referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier, even the Addl. CIT (vide letter dated 24.05.2011), required settlement of the audit objections. The assessee had found the same on an inspection of the assessment file on 11.12.2015, even as copies of these letters, i.e., dated 24.05.2011 and 19.08.2011, were denied to the assessee. Reliance in this regard was placed on the decision in Larsen & Toubro Ltd. v. State of Jharkhand (in CA No. 5390 of 2007 dated 21.03.2017/copy on record), wherein the issue of notice u/s. 19 of the Bihar Finance Act, 1981 by the Assessing Officer at the instance of the audit party and not his personal satisfaction, was held as not permissible in law. At this stage, the ld. DR, who had earlier been required to call the assessment record, confirmed the existence of the letter dated 19.08.2011 by the AO to the audit cell for dropping the audit objections on record, which he was required to place on record, with a copy to the assessee. Be that as it may be, the ld. DR would further submit, the same represents the view of the then AO, and not that of the incumbent AO, i.e., who had issued the notice u/s. 148(1). The very fact that he had issued the said notice, after recording reasons, is proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information does not necessarily have to be from an external source, and could be from the material on record, as further clarified in the afore-cited cases, as indeed in Sewak Ram (supra); Grover Nursing Home v. ITO [2001] 248 ITR 493 (P&H); Consolidated Photo and Finvest Ltd. v. Asst. CIT [2006] 281 ITR 394 (Del). In the present case, we have not been shown that the relevant aspect had been examined, taking a permissible view, i.e., with reference to the assessment order, to regard it as a case of review or change of opinion. Reference in this context may be made to Ess Kay Engg. Co. Pvt. Ltd. v. Dy. CIT [2001] 247 ITR 818 (SC) (approving that by the Hon'ble jurisdictional High Court reported at [1982] 137 ITR 446). In fact, even the same issue may be examined in a different context, validating the reassessment (Venus Industrial Corporation v. Asst. CIT [1999] 236 ITR 742 (P&H)). To say therefore that the present is a case of change of opinion or borrowed satisfaction in view of the audit objection having been raised would not be correct. The import of the letter dated 19.08.2011 to the audit cell by the then AO, however, has to be considered. Vide the said letter (copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious reasons stated by his predecessor for the reopening being not valid, to indicate a fresh application of mind by the incumbent AO. It is, thus, on facts, a clear case of borrowed satisfaction, invalidating the same, as explained in Larsen and Toubro (supra). Rather, as a perusal of the reply dated 19.08.2011 shows, the original assessment had been framed conscious of and having regard to the aspects brought forth by the audit party, taking a permissible view. It is, thus, also a case of change of opinion. The two infirmities are in fact inter-connected. The reopening of assessment is, in our view, thus, not valid in law, and the ensuing assessment, in consequence, without jurisdiction. 4.2 The second reason stated by the ld. CIT(A) for allowing the assessee's appeal is the non-issue of notice u/s. 143(2) of the Act; the assessment framed being u/s. 143(3) r/w s. 147. The Revenue contests this on the ground that no return was filed in response to the notice u/s. 148(1), so that there was, in law, no requirement to issue a notice u/s. 143(2). In this regard, in our view, the mere fact that the assessment order states the assessment as u/s. 143(3) would not, by itself, be conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the same may be furnished toward the end of the time limit for framing the assessment. There is no requirement in law to issue a fresh notice u/s. 148, or cause the service of that already issued again (refer: ITO v. Lal Chand Aggarwal [2012] 134 ITD 91 (Agra-TM). In fact, the Hon'ble jurisdictional High Court in VRA Cotton Mills (P.) Ltd. v. UOI [2013] 359 ITR 495 (P&H), held that the expression 'served' in proviso to sec. 143(2), to bring certainty to the proceedings and pre-empt attempts on the part of the assessees to evade receipt of notices u/s. 143(2), be construed as 'issued'. The jurisdiction to frame an assessment u/s. 147 gets vested by the issue of notice u/s. 148 (R.K. Upadhyaya v. Shanabhai P. Patel [1987] 166 ITR 163 (SC)), and which therefore stands validly assumed in the instant case. There is in law no requirement to issue afresh a notice u/s. 148(1), with in fact the assessment proceedings having commenced thus, which are in fact being participated in by the assessee. The fresh notice u/s. 148, assuming the time there-for has not lapsed (at the relevant time) - which though had in the instant case, could in law only be upon the AO having a new cause o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra) is not with reference to section 148 proceedings, or a case where the jurisdiction to assess has been already validly assumed. We have, in fact, found that there was no compliance of notice u/s. 148 by filing a return, as required by it, so that there was, on facts, no need in law to, in any case, issue a notice u/s. 143(2). We are, accordingly, not in agreement with the assessee on the second issue, also pressed before us. The same, however, becomes academic in view of our finding of the impugned assessment being without jurisdiction. 4.3 We decide accordingly. 5. In the result, the Revenue's appeal is dismissed. Order pronounced in the open court on March 28, 2019 Sd/- (Sanjay Arora) Accountant Member Per: N.K.Choudhry 6. Perused the proposed order of Hon'ble A.M. 7. The Revenue Department has challenged the impugned order dated 29-02-2016 passed by the Ld. CIT(A)-1, Amritsar on following grounds:- "(A) Whether on the facts and in the circumstances of the case & in law, Ld CIT(A) is justified in holding that the notice under section 148 of the Income Tax Act, 1961 was issued in this case merely on change of opinion on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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