TMI Blog2022 (4) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... of four years from the end of the relevant assessment year, unless the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer, that it is a ft case for the issue of such notice. Admittedly in this case, four years from the end of the relevant assessment year A.Y. 2015-16 has expired before the issuance of notice and the approval also has been obtained from the Additional Commissioner of Income Tax and not Principal Commissioner of Income Tax. In the affidavit-in-reply fled through Yashraj Nain, affirmed on 25.03.2022, these facts have not been disputed but according to respondents, the approval granted by the Additional Commissioner of Income Tax was a valid approval. Even for a moment, we agree with the view expressed by respondents, still it applies to only cases where the limitation was expiring on 31st March 2020. In the case at hand, the assessment year is 2015-16 and, therefore, the six years limitation will expire only on 31st March 2022. Certainly, therefore, the Relaxation Act provisions will not be applicable. In any event, the time to issue notice may have been ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, it claimed the same. 4] Petitioner s return of income was selected for scrutiny and assessment order came to be passed under section 143(3) read with section 92CA of the Act on 18.02.2019. During the course of assessment proceedings, petitioner was asked queries including one in notice dated 08.10.2018 under section 142(1) of the Act. Petitioner was called upon to furnish evidence for claim of deduction under section 35AC and 35(2AB) and for claim of deduction under section 80G of the Act. Petitioner fled an elaborate reply dated 24.10.2018 to which petitioner annexed evidence for deduction claimed under section 35AC and 80G of the Act. 5] Thereafter, petitioner received a notice dated 31.03.2021 under section 148 of the Act for A.Y. 2015-16 asserting that there are reasons to believe that petitioner s income chargeable to tax for A.Y. 2015-16 has escaped assessment within the meaning of section 147 of the Act. In response, petitioner fled it s return and requested for copy of reasons for reopening. The reasons for reopening was provided by communication dated 18.11.2021. From the said communication, it is quite clear that the reopening is based on change of opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer is proposing to, on change of opinion, commence the proceedings for reassessment. He is not entitled to do so. It is settled that where on consideration of material on record, one view is conclusively taken by the Assessing Officer, it would not be open to reopen the assessment based on very same material with a view to take another view. 9] As noted earlier and admittedly, petitioner has fled annual returns with required documents as provided for under section 139 of the Act. As held by the Calcutta High Court in Income Tax Officer vs. Calcutta Chromotype (P) Ltd. (1974) 97 ITR 55 (Calcutta), there was nothing more to disclose and a person cannot be said to have omitted or failed to disclose something when, of such thing, he had no knowledge. One cannot be expected to disclose a thing or said to have failed to disclose it unless it is a matter which he knows or knows of. In this case, except for a general statement in the reasons for reopening, the Assessing Officer has not disclosed what were the material facts that petitioner had failed to disclose. 10] In our view, the statement in the reasons for reopening it is evident from the above facts that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 128 (Bombay), this Court while quashing the notice issued u/s 148 of the Act reiterated settled position of law that the decision to reopen assessment must be on the basis of the belief found by the Assessing Officer. It must be open for the audit party to bring relevant aspect to the notice of the Assessing Officer. But thereafter it must be the independent decision of the Assessing Officer to reopen assessment upon formation of his belief that income chargeable to tax had escaped assessment. The Court had relied upon another Judgment of this Court in the matter of Commissioner of Income Tax Vs. Rajan N. Aswani (2018) 91 taxmann.com 313/403 ITR 30. Paragraph 11 of the said judgment reads thus; 11. There is one more ground on which the impugned notice must be quashed. We may recall, the counsel for the petitioner had argued that the Assessing Officer was acting at the behest of the audit party. Such a ground was not taken in the petition. However, we had permitted the petitioner to raise the same in the rejoinder and provided sufficient time to the revenue to respond. This being a pure question of examination of contemporaneous documents, we had requested the counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see s claim for depreciation in the regular assessment and reopened the assessment pursuant to audit objection, it cannot be said that he had formed his own opinion that the income had escaped assessment, and the reopening being based on mere change of opinion, same was not valid. (ii) ICICI Home Finance Co. Ltd., vs. ACIT (2012) 25 taxmann.Com 241 (Bom.): The reasons do not rely upon any tangible material in the audit report but merely upon an opinion and the existing material already on record. This itself indicates that there was no independent application of mind by the Assessing Officer before he issued the impugned notice. On this ground alone, the assumption of jurisdiction by the Assessing Officer can be faulted. (iii) IL FS Investment Managers Ltd., v/s. ITO and Ors (2008) 298 ITR 32 (Bom.) : Reopening of assessment pursuant to audit objection that depreciation was not admissible on intangible assets was not valid. Thus, reopening of the assessment without any basis and merely on change of opinion, was not permissible. vi. Jagat Jayantilal Pacikh vs. DCIT (2013) 32 taxmann.com 161 (Guj.) : The reasons for reopening of the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year, unless the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer, that it is a ft case for the issue of such notice. 21] Admittedly in this case, four years from the end of the relevant assessment year A.Y. 2015-16 has expired before the issuance of notice and the approval also has been obtained from the Additional Commissioner of Income Tax and not Principal Commissioner of Income Tax. In the affidavit-in-reply fled through Yashraj Nain, affirmed on 25.03.2022, these facts have not been disputed but according to respondents, the approval granted by the Additional Commissioner of Income Tax was a valid approval. 22] Respondents have relied upon Taxation and other Laws (Relaxation of Certain Provisions) Act, 2020 (Relaxation Act), limitation to submit, inter alia, under provisions of Section 151(1) and Section 151(2), which were originally expiring on 31st March 2020 stand extended to 31st March 2021. According to the Income Tax Officer, the statutory approval for issuance of notice under Section 148 of the Act for the Assessment Year 2015-2016 may be given by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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