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TMI Blog2024 (3) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequently, Petitioner received a notice dated 30th March 2021 under Section 148 of the Act that there was reason to believe Petitioner's income chargeable tax for AY 2013-2014 has escaped assessment. By a communication dated 30th June 2021, Petitioner received the reasons recorded for reopening. 3. The reasons read as under : "Issues as per reasons recorded for reopening The return of income for the A.Y. 2013-14 was e-filed on 29.11.2013 declaring total loss at (-) Rs. 44,72,95,065/-. The assessment was finalized u/s 143(3) of the Act on 23.3.2016 by assessing total loss at (-) Rs. 39,74,03,230/-. 2. As per explanation of section 73 of the Income Tax Act, 1961, where a company other than a company whose gross total income consists ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of explanation 2 below sec. 147 of the I.T. Act. 3. In view of the above, you may submit your response with supporting documents (if any) on the above mentioned issues to undersigned electronically in 'E-proceedings' facility through your account in e-Filling website (www.incometaxindiaefiling.gov.in) at your convenience on or before 15/07/2021." 4. Ms. Hariya submitted, at the outset, that since a notice under Section 148 of the Act dated 30th March 2021 was issued after the expiry of four years from the end of relevant assessment year and assessment under Section 143(3) of the Act has already been completed, the proviso to Section 147 of the Act shall apply inasmuch as reopening is not permissible unless there has been fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying that the subject matter of Section 73 of the Act was simply touched upon, but this issue was neither questioned nor verified by the AO during the course of original assessment proceedings. Ms. Hariya also submitted that the applicability of Section 73 of the Act was the subject of consideration during the assessment proceedings and relied upon copy of a letter dated 29th February 2016 in which in the last paragraph it is recorded as under : "So in the light the above facts and various judicial pronouncements, it is submitted that the assessee has rightly consider the loss in derivatives as well as share business loss as normal business loss and in this case Section 73 of the Income Tax Act is not applicable." 6. Therefore, the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter dated 29th February 2016 states that Section 73 of the Act was not applicable, there were no notices issued under Section 142(1) of the Act raising any query under Section 73 of the Act and there is no discussion in the assessment order either about this issue. 9. Ms. Hariya responded in rejoinder that if such a query was not raised during the hearings conducted during the assessment proceedings, why would an Assessee refer to the applicability of Section 73 of the Act. Ms. Hariya submitted that almost nine hearings took place before the assessment order dated 23rd March 2016 was passed. Even after the letter dated 29th February 2016 was submitted during the hearing on 29th February 2016, two more hearings took place and the AO did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said letter even the explanation of Section 73(4) of the Act has also been extracted. Therefore, it is clear that the applicability of Section 73 of the Act was a subject of consideration during the assessment proceedings and as held by Aroni Commercials Limited (supra), once a query is raised during the assessment proceedings and Assessee has replied to it, it follows that the query raised was a subject of consideration of the AO while completing the assessment and it is not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. It would, therefore, follow that the reopening of assessment is merely based on the basis of change of opinion which does not cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, order or a writ, including a writ in the nature of 'Certiorari', calling for the records of the case and after satisfying itself as to the legality thereof quash and set aside the notice dated 30.03.2021 issued by the First Respondent under section 148 of the Income tax Act, 1961, being Ex. - 'I' hereto; (b) that this Hon'ble Court may be pleased to issue under Article 226 of the Constitution of India an appropriate direction, order or a writ, including a writ in the nature of 'Certiorari', calling for the records of the case and after satisfying itself as to the legality thereof quash and set aside the communication dated 11.02.2022, Ex. - 'N' herein, issued by the Third Respondent, purportedly d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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