TMI Blog2008 (7) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... . M. Chatterji with P. P. Bhosale, for the respondents. JUDGMENT 1. Rule. Returnable forthwith. Heard finally by consent of parties. 2. The Petitioner by this petition challenges the notice issued under Section 148 of the Income-tax Act 1961, as also the order dated 14 th May, 2008 rejecting his objection to the notice issued under Section 148. 3. The facts that are relevant are that the Petitioner is a company duly registered under the Companies Act 1956, and is engaged in the business of manufacturing and sale of paints and related products. The Petitioner is regularly assessed to income-tax. This petition relates to the assessment year 2003-04. The Petitioner had on 20-11-2003 filed returns of income declaring income of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the company to show cause vide letter dated 7 th December, 2005 why the provision of Rs.71.34 lakhs being the estimated wage arrears liability should be allowed. Similarly, vide order sheet entry, the Assessing Officer had directed the Company to show cause why the contributions to the provident, etc. funds towards reimbursement of capital loss suffered by them should not be disallowed. The Company had, vide letters dated 15 th December, 2005 and 17 th January, 2006, provided detailed explanation on why the said two amounts deserved to be allowed and it was only thereafter that the Assessing Officer had passed the order allowing the Company's claim for the said expenditure. It was claimed that in this situation, therefore, notice unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved "Verification of assessment record reveals that the said details were called for but inadvertently the same were not taken into account while framing the assessment and therefore, it cannot be said that there is a change of opinion." According to the Respondent No.1, thus, the relevant material was available on record, but he failed to apply his mind to that material in making the assessment order. The question is, can the Respondent No.1 take recourse to provision of Section 147 for his own failure to apply his mind to the material which according to him is relevant and which was available on record. We find that this situation has been considered by the Full Bench of the Delhi High Court in its judgment in the case of Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislature has not conferred power on the Assessing Officer to review its own order. Therefore, the power under Section 147 cannot be used to review the order. In the present case, though the Assessing Officer has used the phrase "reason to believe", admittedly between the date of the order of assessment sought to be reopened and the date of formation of opinion by the Assessing Officer, nothing new has happened, therefore, no new material has come on record, no new information has been received, it is merely a fresh application of mind by the same Assessing Officer to the same set of facts and the reason that has been given is that the some material which was available on record while assessment order was made was inadvertently excluded f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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