9911796707
TMI Blog2022 (7) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned notice dated 31.03.2018 issued under section 148 of the Income Tax Act, 1961 (For short "the Act") proposing to reopen the assessment for the Assessment Year 2011-2012. 5. Brief facts of the case are that the petitioner is a company incorporated under the Companies Act, 1956 and is engaged in the activity of pollution control and environmental engineering and consulting. The petitioner, during the year under consideration i.e. Assessment Year 2011-2012, was also running and maintaining Bio-Medical Waste treatment plant at Surat, Udaipur and Ranchi. It is the case of the petitioner that separate books of accounts were maintained for the activities related to Bio-Medical Waste treatment plant projects and income arising from such projects was claimed as deduction under section 80-IA of the Act. 5.1) The petitioner filed the original return of income for the year under consideration on 29.09.2011. The petitioner later on filed revised return of income on 16.09.2012 declaring total income at Rs. 3,54,830/- after claiming of deduction of Rs. 1,39,88,951/- under section 80-IA of the Act. It is the case of the petitioner that the claim of deduction under section 80-IA of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JB of the Act. The case was selected for scrutiny and order u/s. 143(3) of the Act was completed on 28.02.2014 by determining total Income at Rs. 5.39.000/&accepting Book Profit u/s 115JB of the Act at Rs. 1.55.29,800/- The assessee company had paid tax u/. 11518 of the Act. During the year, the assessee was engaged in business of Pollution Control & Environmental Engineers & Consultants business. 2. The case records of the assessee have been perused. On perusal of scrutiny of P&L account, Balance Sheet, Computation of income, it is revealed that assessee had claimed the deduction of Rs. 1.39,88.951/ u/s. 801A (100% exemption from tax) of the Act on profit earned from Bio-Medical Waste (BMW) Projects. Further. It is noticed that while calculating the profit BMW project, some of the common expenses were not bifurcated between the main unit and BMW projects. As there is no provision in the Income Tax Act for apportionment of common and indirect expenses between exempt (BMW) and non-exempted unit (main unit), the common expenses were required to be apportioned on the basis of turnover/sales being logical basis for apportioning of this expenses. The details of turnover/sales of both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T. Act. 4. In this case a return of income was filed for the year under consideration and regular assessment w/s.143(3) was made on 27.02.2014. Since, 4 years from the end of the relevant year has expired in this case, the requirement to initiate proceedings u/s. 147 are reason to believe that Income for the year under consideration has escaped assessment because of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the assessment year under consideration. It is pertinent to mention here that reasons to belleve that income has escaped assessment for the year under consideration have been recorded above (refer paragraphs 2 to 3 above). In this case more than four years have lapsed from the end of assessment year under consideration. Hence necessary sanction to issue notice u/s 148 has been obtained separately from Principal Commissioner of Income Tax as per the provisions of section 151 of the Act." 5.6) The petitioner, vide letter dated 28.09.2018, raised objections against reopening of the assessment. 5.7) The respondent, however vide order dated 06.11.2018 disposed of the objections raised by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner was higher than tax liability under the normal provisions and hence, the petitioner was governed by the provisions of section 115JB of the Act. It was submitted that even if the entire addition proposed by the respondent (i.e. Rs. 61,30,049/-) is made to the total income of the petitioner, then also the tax liability on the same would still be less than the MAT liability i.e. the petitioner would still be governed by the provisions of section 115JB of the Act. It was submitted that since the petitioner has already paid much higher tax under the provisions of section 115JB of the Act, there would be no addition to the tax liability of the petitioner even if the addition proposed by the respondent is made. Thus, there is no escapement of income chargeable to tax. It was submitted that since the condition precedent for resorting to reassessment under section 147 of the Act is not satisfied in the case of the petitioner, reopening is unjustified. 6.4) Learned Senior Advocate Mr. Hemani submitted that no new tangible material has come to the knowledge of the respondent after framing of the assessment which could have enabled him to have reason to believe that income charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s justified. 8. Considering the submissions made by learned advocates for both the sides, it is not in dispute that the assessment for the year under consideration i.e., Assessment Year 2011-2012 which is sought to be reopened by the impugned notice dated 31.03.2018 is clearly beyond a period of four years from the end of relevant assessment year. On perusal of the reasons recorded for reopening the assessment, it nowhere reveals that the assessee has failed to disclose truly and fully all material facts relevant for the assessment. 9. The petitioner assessee availed the deduction under section 80IA of the Act. On the basis of the audit report in Form 10CCB, the reasons assigned by the Assessing Officer to reopen the assessment questioning the apportionment of common expenses between exempted unit and non-exempted unit on the basis of the total turnover of the petitioner company was already considered during the course of the regular assessment under section 143(3) of the Act. 10. Moreover, the petitioner assessee has relied upon the appellate order for the Assessment Year 2009-2010 dated 30.12.2013 to point out that the books of accounts were separately maintained by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of "mere change of opinion", which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to reassess. But re-assessment has to be based on fulfillment of certain precondition and if the concept of "change of opinion" is removed, as contended on behalf of theDepartment, 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....." 12. The Assessing Officer issued notice under section 148 of the Act only to make a roving inquiry into the facts which were already considered by the Assessing Officer at the time of framing the original assessment under section 143(3) of the Act. It appears that the Assessing Officer now wants to re-verify the facts which is not permissible to be an acceptable ground for exercising powers to reopen the assessment. 13. For the foregoing reasons, the impugned notice dated 31.03.2018 issued under section 148 of the Act by the respondent exercising the powers to reopen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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