TMI Blog2023 (5) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... ned satisfaction of Additional Commissioner of Income Tax, an authority who is not covered by the provision of Section 151(1) - The said notice was issued after obtaining the satisfaction of the Additional Commissioner of Income Tax. Thus, it prima facie appears that in view of the prescription of Section 151(1) by necessary implication, the Additional Commissioner of Income Tax would not be same as Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner of Income Tax. Therefore, on the ground that the Income Tax Officer, Ward-I, Tinsukia had obtained satisfaction of Additional Commissioner of Income Tax, an authority who is not covered by the provision of Section 151(1) as it stood on 01.01.2019, the proceeding initiated against the petitioner company by issuance of notice u/s 148 is held to be not in accordance with law. A possible plea could have been raised by the Income Tax authorities that this writ petition would not be maintainable as the petitioner could avail ordinary remedy of filing an appeal against the order of re- assessment. Thus under the unique facts of this case, this writ petition under Article 226 of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kia to provide them the reasons to believe by annexing thereto a copy of the Income Tax return in Form ITR-V. The reasons to believe was supplied by the Income Tax Officer, Ward-I, Tinsukia by letter dated 06.05.2019. Thereupon, the petitioner company gave a reply dated 10.05.2019, questioned the jurisdiction of the Income Tax Officer, Ward-I, Tinsukia for taking recourse to Section 147 and 148 of the Income Tax Act, 1961 for re-assessment. The Income Tax Officer, Ward-I, Tinsukia, by his letter dated 20.05.2019, rejected the contention of the petitioner regarding change of opinion on the ground that the petitioner company was eligible to claim deduction only upto 10 assessment years i.e. upto 2013-14 as the activity commenced in the unit of the petitioner company from 25.03.2004, for which there was a mistake apparent from the record which was left out during the earlier assessment proceeding . 5. In support of his submissions, the learned counsel for the petitioner has cited the case of (i) Commissioner of Income Tax, Delhi v. Kelvinator of India Ltd., (2010) 2 SCC 723: (2010) (302) ITR 561 (Full Bench decision), and (ii) Tractebel Industry Engineering v. Asstt. Director of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceeding under Section 148 of the Income Tax Act, 1961 to re-open the assessment is actuated merely by a change of opinion. 9. In the notice issued under Section 148, the Income Tax Officer, Ward-I, Tinsukia has not taken a stand that the petitioner Company had failed to make full and true disclosure of facts at the time of original assessment. In the considered opinion of the Court, a duty is cast on the assessee to make full and true disclosure of facts at the time of original assessment and the assessee has no duty beyond that. It is for the assessing officer to draw correct inference from the primary facts. Therefore, if subsequent to assessment made under Section 143(3) of the Income Tax Act, 1961, the assessing officer draws an inference that assessment made by him was erroneous, such a change in opinion would not justify action for re-opening assessment. 10. In respect of the such opinion, the Court finds support from the decision of the Full Bench of the Delhi High Court in the case of CIT v. Kelvinator of India Ltd., (2002) 256 ITR 1 (Delhi) , which was approved by the Supreme Court of India in the case of Kelvinator of India Ltd. (supra), and Macrotech Develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of section 151. (3) If the person on whom a notice under section 148 is to be served is a person treated as the agent of a non-resident under section 163 and the assessment, reassessment or recomputation to be made in pursuance of the notice is to be made on him as the agent of such non-resident, the notice shall not be issued after the expiry of a period of six years from the end of the relevant assessment year. Explanation. For the removal of doubts, it is hereby clarified that the provisions of sub- sections (1) and (3), as amended by the Finance Act, 2012, shall also be applicable for any assessment year beginning on or before the 1st day of April, 2012. 15. In this case, the income which has allegedly escaped assessment is Rs.47,15,369/-. Therefore, under the provision of Section 149(1)(b) of the Income Tax Act, 1961 as amended vide by Finance Act, 2012 w.e.f. 01.07.2012 (quoted above), which was in force when notice dated 01.09.2019 was issued by the Income Tax Officer, Ward-I, Tinsukia, the period of limitation to issue notice under Section 148 of the Income Tax Act, 1961 would be four years, but not more than six years . Therefore, the notice dated 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner (assessee) had made full and true disclosure of facts at the time of original assessment and also at the time of scrutiny proceeding under section 143(2) and 143(3) of the Income Tax Act, 1961. The assessee had no duty beyond that. It was for the assessing officer to draw correct inference from the primary facts. Therefore, if subsequent to assessment made under Section 143(3) of the Income Tax Act, 1961, the assessing officer draws an inference that assessment made by him was erroneous, such a change in opinion would not justify action for re-opening assessment. b. The said notice was issued after obtaining the satisfaction of the Additional Commissioner of Income Tax. Thus, it prima facie appears that in view of the prescription of Section 151(1) of the Income Tax Act, 1961, by necessary implication, the Additional Commissioner of Income Tax would not be same as Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner of Income Tax. Therefore, on the ground that the Income Tax Officer, Ward-I, Tinsukia had obtained satisfaction of Additional Commissioner of Income Tax, an authority who is not covered by the provision of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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