TMI Blog2023 (9) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... e of opinion. Assessing Officer in absence of any independent verification of the information available on the Insight Portal has proceeded to re-open the completed assessment without indicating the basis for having a reason to believe that the information in the hands of the petitioner had escaped assessment. Re-opening is on the basis of gross incorrect facts that the assessment had been completed under Section 143(1) of the Act of 1961 and was hence no assessment under Section 2(40) of the Act of 1961 when infact the assessment had been completed under Section 143(3) - re-opening was thus merely an outcome of change of opinion of the AO - The notice issued on 31.03.2021 under Section 148 of the Act of 1961 is thus liable to be quashed. It is accordingly quashed having been issued in absence of statutory jurisdiction in that regard. Consequentially, steps taken pursuant to the said notice issued u/s 148 would not survive. Decided in favour of assessee. - A. S. CHANDURKAR AND MRS VRUSHALI V. JOSHI, JJ. For the Petitioner : Shri Kapil Hirani, S.C. Thakar, R.S. Thakar, counsel. For the Respondent nos. 1 to 4 : Shri Anand Parchure with Bhushan Mohata, counsel. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anks and accounts were furnished alongwith copies of bank statements. For the period from 10.11.2016 to 30.12.2016 list of 5772 customers came to be provided with necessary details. On this basis the Assistant Commissioner of Income Tax passed an assessment order under Section 143(3) of the Act of 1961 on 22.12.2019 and after making certain additions assessed the income of the petitioner at Rs. 1,25,16,470/-. 4. Thereafter on 31.03.2021 notice under Section 148 of the Act of 1961 came to be issued proposing to undertake re-assessment by re-opening the earlier completed assessments. The petitioner was called upon to file a return in the prescribed form for the relevant assessment year. The said notice was issued after obtaining the sanction of the Additional/Joint Commissioner of Income Tax Range-4, Nagpur. According to the petitioner, its return could not be filed immediately on account of some technical glitches at the portal of the Income Tax Department. The return was ultimately filed by the petitioner on 29.12.2021. On 30.12.2021 the petitioner sought copy of the reasons for re-opening the assessment from the Assistant Commissioner of Income Tax. This was followed by a remin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the original assessment proceedings under Section 143(3) of the Act of 1961 had been concluded were sought to be reopened on the very same grounds. The same was impermissible. In the original assessment proceedings various details had been sought from the petitioner pursuant to the notice dated 30.08.2019 and 20.10.2019. All information available with the petitioner was supplied and it is on that basis that the assessment order under Section 143(3) of the Act of 1961 came to be passed on 22.12.2019. Since the return of the petitioner s income had been accepted at that stage it was not permissible to re-open the said proceedings merely on the basis of change in opinion of the Income Tax Officer. It ought to be assumed that during the course of original assessment proceedings all relevant information was available with the Assessing Officer but he had not chosen to utilize such material. It therefore could not be said that the petitioner had failed to disclose truly and fully all material facts so as to re-open the assessment. Reliance was placed on the decisions in Gagan Omprakash Navani Versus Income Tax Officer [Writ Petition No. 1601 of 2022], decided on 15.03.2022, Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 148 of the Act of 1961 was liable to be quashed. 6. Shri Anand Parchure, learned counsel for the respondent- Department opposed the aforesaid submissions. At the outset it was submitted that since the order of assessment had been passed pursuant to the notice issued under Section 148 of the Act of 1961 a statutory remedy of filing an appeal was available to be petitioner. All legal issues including the validity of the notice issued under Section 148 of the Act of 1961 could be raised in such appeal. Since an efficacious remedy was available to the petitioner it was not necessary to entertain the writ petition. In that regard, the learned counsel placed reliance on the decisions in M/s Jain Sewa Bahuuddeshiya Samiti, Yashodham Versus Income Tax Officer, Ward-1, Khamgaon Another [Writ Petition No. 4124 of 2022], decided on 19.01.2023, Gian Castings (P) Ltd. Versus Central Board of Direct Taxes [(2022) 140 taxmann.com 319(SC)], Gopal Tukaram Bitode Versus Income Tax Officer, Ward-1, Akola Others [Writ Petition No. 4141 of 2022 alongwith connected writ petitions], decided on 10.11.2022, The State of Maharashtra Others Versus Greatship (India) Limited [Civil Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctly explained by the Hon ble Supreme Court in M/s Godrej Sara Lee Limited Versus The Excise and Taxation Officer-cum-Assessing Authority Others [Civil Appeal No .5393 of 2010, decided on 01.02.2023]. While the objection to maintainability goes to the root of the matter and if such objection is found to be of substance, the Court would be rendered incapable of receiving the lis for adjudication. On the other hand, the question of maintainability is within the realm of discretion of the High Court since writ remedy is discretionary in nature. It has been further observed that dismissal of writ petition on the ground that the petitioner has not availed the alternate remedy without examining as to whether an exceptional case has been made out for such entertainment would not be proper. After referring to various earlier decisions, the exceptions on the basis of which a writ Court would be justified in entertaining a writ petition notwithstanding the availability of an alternate remedy were indicated which includes the aspect where the proceedings are without jurisdiction or the order in that regard is without jurisdiction. If a jurisdictional issue is raised and the controv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusive view thereon, it is not permissible to reopen the assessment based on the very same material on the premise that it is susceptible to a different opinion favourable to the Revenue. In Gian Castings (P) Ltd. (supra), the Hon ble Supreme Court refused to interfere with the order passed by the High Court of Punjab and Haryana whereby the High Court declined to entertain a challenge to notice issued under Section 148 of the Act of 1961 after noting the difference between a jurisdictional error and error within jurisdiction. In Gopal Tukaram Bitode (supra) the fact that the petitioner did not challenge the re-opening notice on the premise that it had to be only under Section 153C of the Act of 1961 was the reason not to interfere in writ jurisdiction. In Greatship (India) Ltd. (supra), challenge was raised to the assessment order in writ petition which was entertained on merits. The Hon ble Supreme Court held that such challenge to the order of assessment ought not to have been entertained by the High Court. The ratio of the decisions relied upon by the learned counsel for the respondents cannot be applied to the facts of the present case. 9. Having found that it wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y entering into suspicious transactions. The said material however was not further linked by any reason to come to the conclusion that the assessee had indulged in any activity that could give rise to reason to believe on the part of the Assessing Officer that income chargeable to tax had escaped assessment. Further there was absence of application of mind to the information received and the re-opening notice was issued merely on the basis of such information received. It was held that such action was in breach of the settled position of law that the re-opening notice was required to be issued by the Assessing Officer on his own satisfaction and not on borrowed satisfaction. We find that in the present case except for referring to the information available on the Insight Portal, the Assessing Officer has proceeded to re-open the assessment without indicating any independent application of mind to the said information that was available on the Insight Portal for satisfaction to be recorded. It would thus be a case of issuing the re-opening notice on borrowed satisfaction. 10. Another pertinent aspect that can be noted in the reasons for reopening is that it has been stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court found that during the course of assessment proceedings the queries raised by the Assessing Officer had been responded to. The explanation furnished by the assessee was not rejected and an assessment order was thereafter passed which thus indicated that the Assessing Officer had accepted the stand of the assesses. Seeking to re-open the proceedings therefore merely on the basis of change of opinion was held to be without jurisdiction. Similar view has been taken in Zoetis India Ltd. (supra) that though it would not be necessary that the assessment order should contain reference and/or discussion so as to disclose the satisfaction in respect of the query raised, change of opinion would not constitute a justification and/or reason to believe that the income chargeable to tax had escaped assessment. In Golden Tobacco Limited (supra), a similar view has been taken that on a query being raised and it being answered resulting in passing an assessment order, re-opening of the assessment merely on the basis of change of opinion would not be permissible. We find in the facts of the present case that on the basis of the information supplied by the petitioner pursuant to the q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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