TMI Blog2019 (8) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... onded to the same by its letters dated 10 December 2017 and 21 December 2017 justifying its stand. The non-rejection of the explanation in the AO would amount to the AO accepting the view of the assessee, thus taking a view/forming an opinion. Therefore, in these circumstances, the reasons in support of the impugned notice proceed on a mere change of opinion and therefore would be completely without jurisdiction in the present facts. Accordingly, the impugned notice dated 27 March 2019 is quashed and set aside. - WRIT PETITION NO. 1917 OF 2019 - - - Dated:- 21-8-2019 - M.S. SANKLECHA NITIN JAMDAR, JJ . Mr. Percy Pardiwala, Senior Advocate a/w. Nitesh Joshi i/b. Mandar Manohar Vaidya for the Petitioner. Mr. Sham Walve a/w. Pritish Chatterjee for the Respondents. P.C. :- At the request of the learned Counsel for the parties, this Petition is taken up for final disposal at the stage of admission. 2. This Petition under Article 226 of the Constitution of India challenges a notice dated 27 March 2019 issued by the Respondent No.1 Assistant Commissioner of Income Tax. The impugned notice dated 27 March 2019 has been issued und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with AS (Accounting Standard) 26 and cannot be permitted. (iv) The Respondent No.1 passed an assessment order dated 30 January 2018 under Section 143(3) r/w Section 144C of the Act. The above assessment order accepted the Petitioner s claim for allowing depreciation for amortization of brand value to determine Book Profits under Section 115JB of the Act at ₹ 684.04 crores. (v) Thereafter, on 27 March 2019 the impugned notice was issued seeking to re-open the Assessment Year 2014-15. The impugned re-opening notice has been issued within a period of four years from the end of Assessment Year 2014-15. The reasons in support of the impugned notice as issued to the Petitioner reads as under :- 1) In this case, the assessee has filed its return of income on 24.11.2014 declaring total income of ₹ 422,17,76,910/- for A.Y. 2014-15. The case was selected for scrutiny under CASS and scrutiny assessment was completed u/s.143(3) r.w.s. 144C(3) on 30.01.2018 determining total assessed income at ₹ 4,98,28,21,820/- and Book Profit u/s 115JB at ₹ 684,08,76,976/-. 2) On going through the records of the assessee compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer by an order dated 9 June 2019 rejected the objections by holding that basis of the reopening notice is not on account of change of opinion. This for the reason that the Assessing Officer had not formed any opinion with regard to the same in the order dated 30 January 2018 passed under Section 143(3) of the Act, as there is no discussion on it, in the impugned order dated 30 January 2018. 4. Mr. Pardiwala, learned Senior Advocate appearing in support of the Petition submits as under :- (a) Although the impugned notice for reopening has been issued within a period of four years from the end of Assessment Year i.e. 2014-15, yet the jurisdiction to reopen an assessment cannot be exercised on account of change of opinion. It is submitted that jurisdiction to re-open an assessment is not a jurisdiction to review an order as held by the Apex Court in CIT v. Kelvinator of India Ltd. (2010) 320 ITR 561; (b) In this case a specific query with regard to the issue which forms the basis of the reopening notice was raised during the regular assessment proceeding under Section 143(3) of the said Act. The Petitioner s explanation to the above speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d become a power of review, which it is not. 7. The Apex Court in Kelvinator of India Ltd. (supra), has while setting out the parameters for the exercise of powers of reopening an assessment had inter-alia observed as under :- However, one needs to give a schematic interpretation to the words reason to believe failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to reopen assessments on the basis of mere change of opinion , which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to reassess. But reassessment has to be based on fulfillment of certain pre-conditions and if the concept of change of opinion is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place. One must treat the concept of change of opinion as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, the Assessing Officer has power to reopen, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. Reasons must hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions, so as to not deal with that issue in the assessment order. In fact, our Court in GKN Sinter Metals Ltd. V/s. Ms. Ramapriya Raghavan, Assistant Commissioner of Income Tax, Circle 2(1) (371) ITR 225 had occasion to dealt with the similar/identical submissions on behalf of the Revenue viz. that an assessment order passed under Section 143(3) of the Act does not reflect any consideration of the issue, it must follow that no opinion was formed by the Assessing Officer in the regular assessment proceedings. This submission was negatived by this Court by observing as follows :- 14. According to the Revenue, it could only be when the assessment order contains discussion with regard to particular claim can it be said that the Assessing Officer had formed an opinion with regard to the claim made by the assessee. This Court in Idea Cellular Ltd. v/s. Deputy Commissioner of Income Tax 301 ITR 407 has expressly negatived on identical contention on behalf of the Revenue. The Court held that once all the material was placed before the Assessing Officer and he chose not to refer to to the deduction/ claim which was being allowed in the assessment order, it could not be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... query has been raised during the assessment proceedings and the Petitioner has responded to the query to the satisfaction of the Assessing Officer as is evident from the fact that the Assessment Order dated 9th March, 2005 accepts the Petitioner's claim for deduction under Section 80IA/IB of the Act. It must follow that there is due application of mind by the Assessing Officer to the issue raised. The above observations apply on all fours to this Petition, so far as the Revenue s submission of no change of opinion is concerned. 11. The further submission of Mr. Walve that in the absence of the Assessing Officer adjudicating upon the issue it cannot be said that the Assessing Officer had formed an opinion during the regular assessment proceedings leading to the order dated 30 January 2018. An adjudication would only be on such issue where the assessee s submissions are not acceptable to the Revenue, then the occasion to decide a lis would arise i.e. adjudication. However, where the Revenue accepts the view propounded by the assessee in response to the Revenue s query, the Assessing Officer has certainly to form an opinion whether or not the stand taken by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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