TMI Blog2021 (9) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... o come to a conclusion that income escaped assessment, the Assessing Officer cannot now take a stand that the claim made by the assessee under Section 37 of the Act, which was acceded to by the Assessing Officer, was incorrect and the expenditure is in the nature referred to in Section 35D of the Act. If this is the observation and reason for reopening, it would be a clear case of change of opinion. What the Assessing Officer purported to do is to review his earlier decision. As held by the Supreme Court, it is not for the assessee to tell as to how the Assessing Officer has to complete the assessment. The AO, while disposing of the objections vide order dated 26.2.2016, has not touched upon the issue relating to jurisdiction. Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer disposing of the objections, filed by the assessee, by order dated 26.2.2016, could be scrutinized for its correctness only in the reassessment proceedings and could not be the subject matter of challenge in a writ proceeding. Aggrieved by such an order, the appellant is before us by way of this appeal. 6. The Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd. Vs. ITO [reported in (2003) 259 ITR 19], held that reasons for reopening, if sought for by the assessee, have to be furnished and the assessee is entitled to an opportunity to file their objections to the reasons assigned by the Assessing Officer for reopening the assessment, be it within four years or beyond four years and such objections should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d are questioned on the ground of violation of the principles of natural justice, when there is total lack of jurisdiction and when there is manifestly arbitrariness and illegality in the orders passed by the Authority. 10. Thus, bearing these principles in mind, if we examine the case on hand, the writ petition is maintainable as against the order disposing of the objections and the Court can scrutinize as to whether the reopening was a change of opinion and was there any attempt to review the original order of assessment. However, we agree with the learned Single Judge that there cannot be an adjudication into the merits or roving enquiry into the merits of the assessment to come to a conclusion as to whether the reopening was justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Ltd.[reported in (2002) 256 ITR 1] wherein it was held that when a regular order of assessment was passed under Section 143(3) of the Act, a presumption could be raised that such an order had been passed on application of mind and if it was to be held that an order, which had been passed purportedly without application of mind would itself confer jurisdiction upon the Assessing Officer to reopen the proceeding without anything further, the same would amount to giving premium to the Authority exercising quasi judicial function to take benefit of his own wrong. 14. The assessee contended that Section 147 of the Act did not postulate conferment of power upon the Assessing Officer to initiate reassessment proceedings upon a mere change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out a questionnaire containing as many as 20 questions and it is submitted that question Nos.13 and 15 would be germane for the issue on hand, which dealt with a detailed note on the conversion of preference shares into equity shares and the details under several heads of expenses along with details of deduction. It is further submitted by the learned counsel for the appellant that the details were filed before the Assessing Officer and a brief note on the issuance of shares was also submitted along with relevant details. Further, the assessee claimed the benefit of Section 37 of the Act. It is also submitted that there was only one issue pertaining to preference shares in the case of the assessee for the relevant financial year and there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to fully and truly disclose all materials and thereafter, it is for the Assessing Officer to take a call on the materials. 21. We are satisfied that whatever be the concern, it was to be traced in the assessment under Section 143(3) of the Act, the details in the understanding of the Assessing Officer were called for and the details were placed by the assessee and thereafter, the assessment has been completed. Therefore, we find that the reopening was wholly without jurisdiction. As pointed out earlier, the Assessing Officer, while disposing of the objections vide order dated 26.2.2016, has not touched upon the issue relating to jurisdiction. 22. It is the submission of the learned Standing Counsel appearing for the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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