2015 (8) TMI 1217 - HC - Income Tax

High Court invalidates reassessment under Income Tax Act, citing lack of new material

The Commissioner of Income Tax, The Assistant Commissioner of Income Tax Versus M/s. Hewlett-Packard Globalsoft Pvt. Ltd.

The High Court upheld the Tribunal's decision, ruling that the reopening of the assessment under Section 147 of the Income Tax Act was invalid as it ... Reopening of assessment - Eligibility of the income derived from rendering technical services abroad to be eligible for deduction under Section 10-A or not - Held that:- As from the original assessment records that the claim of the assessee under Section 10A of the Act was thoroughly scrutinized, the assessing Officer had examined the claim of expenditure incurred in foreign currency for providing technical services by allocating the sum of ₹ 38,51,45,781/- between the five STP units in the ratio of the export sales. In fact, the assessing Officer had raised certain queries during assessment proceedings and detailed reply given by the assessee, which is extracted herein above, would leave no doubt in our mind that the said issue was thoroughly addressed to by the assessing Officer, considered and the plea of the assessee came to be accepted. In that view of the matter, it cannot be construed that there was either non disclosure by the assessee or the assessing Officer had obtained material subsequent to the framing of the assessment order on 27.03.2006 so as to arrive at a conclusion that there was escapement of income from tax. For the reasons aforestated, we are of the considered view that the Tribunal was fully justified in arriving at a conclusion that the re-opening of assessment was by change of opinion and the issue regarding eligibility of the income derived from rendering technical services abroad to be eligible for deduction under Section 10A or not had already been considered by the assessing Officer in the assessment concluded under Section 143(3) of the Act on 27.03.2006. - Decided in favour of assessee. Issues Involved:1. Validity of reopening the assessment under Section 147 of the Income Tax Act.2. Whether the reopening of assessment was based on a mere change of opinion.Detailed Analysis:Issue 1: Validity of Reopening the Assessment under Section 147The primary contention revolves around the legitimacy of the Assessing Officer's (AO) decision to reopen the assessment for the year 2003-04 under Section 147 of the Income Tax Act. The AO issued a notice under Section 148, arguing that the assessee had claimed an excessive deduction under Section 10A by including profits derived from technical services in the eligible profits. The AO's rationale was that the expenditure related to onsite development of computer software was not examined in the original assessment, thus justifying the reopening.However, the Tribunal annulled the reassessment proceedings, concluding that the AO had previously scrutinized the claim under Section 10A during the original assessment. The Tribunal noted that the AO had already examined the issue of excluding certain sums from the export turnover due to expenses incurred in foreign exchange for providing technical services outside India. The Tribunal determined that the AO's attempt to reopen the assessment was based on a mere change of opinion, which is not permissible under Section 147.Issue 2: Mere Change of OpinionThe Tribunal's decision emphasized that the AO's action to reopen the assessment was indeed based on a mere change of opinion. The AO had initially scrutinized the assessee's claim under Section 10A, including the exclusion of expenses incurred in foreign currency for providing technical services. The Tribunal observed that the AO had already formed an opinion on this matter during the original assessment proceedings, as evidenced by detailed queries and responses between the AO and the assessee.The Tribunal referred to several judicial precedents, including the Supreme Court's ruling in CIT vs. Kelvinator of India Ltd., which held that the AO does not have the jurisdiction to review his own order under the guise of reassessment. The Tribunal concluded that the AO had no new tangible material to justify the reopening and that the reassessment was merely an attempt to review the earlier decision.Conclusion:The High Court upheld the Tribunal's decision, affirming that the reopening of the assessment was invalid as it was based on a mere change of opinion. The court reiterated that the AO had already examined the issue during the original assessment, and there was no new material to warrant a reassessment. Consequently, the appeals filed by the revenue were dismissed, and the Tribunal's order was affirmed.Order:1. Appeals dismissed, substantial questions of law answered in favor of the assessee.2. Tribunal's order in ITA Nos. 283/Bang/2012 and 267/Bang/2012 dated 30.09.2013 affirmed.3. No order as to costs.