2016 (9) TMI 118 - HC - Income Tax

Court upholds assessment reopening for 2009-10, rejects 'change of opinion' argument, directs petitioner to address legal contentions.

The court dismissed the petition challenging the notice for reopening the assessment for the assessment year 2009-10, holding that the Assessing Officer ... Reopening of assessment - reason to believe - acceptance of return under section 143(1) - change of opinion - accommodation entries in the form of share application money - reassessment jurisdiction where return was not scrutinisedReopening of assessment - reason to believe - acceptance of return under section 143(1) - accommodation entries in the form of share application money - Validity of notice under section 148 to reopen assessment for AY 2009-10 where return had been accepted under section 143(1) on the basis of information about alleged bogus share application money received by the assessee - HELD THAT: - The Court held that where a return has been accepted under section 143(1) (i.e., no scrutiny assessment was framed), the Assessing Officer may still reopen the assessment if he has 'reason to believe' that income chargeable to tax has escaped assessment. The requirement at the notice stage is existence of relevant material on which a reasonable person could form such belief and not proof that escapement will be conclusively established. The Assessing Officer relied on departmental investigative information that a non-genuine company had been issuing cheques against equivalent cash and had made share application investments in the petitioner; statements recorded during inquiry indicated the non-genuineness of the company and that the petitioner had received share application money from it. Applying the principles explained in Assistant Commissioner of Income Tax vs. Rajesh Jhaveri Stock Brokers P. Ltd. and followed decisions, the Court found these materials sufficient to constitute 'reason to believe' and to confer jurisdiction to issue notice under section 148. The Court refused to examine whether the additions would ultimately be sustained, observing that such ultimate conclusion is not relevant at the stage of issuance of notice. The petition seeking to quash the notice was therefore dismissed, without foreclosing the assessee from raising substantive contentions before the Assessing Officer. [Paras 3, 4, 7]Notice issued under section 148 to reopen the assessment for AY 2009-10 sustained; writ petition dismissed.Final Conclusion: Writ petition challenging reopening notice for assessment year 2009-10 dismissed; Assessing Officer was entitled to initiate reassessment proceedings on the material regarding alleged bogus accommodation entries, and the question whether additions would be sustained is not determinative at the notice stage. Issues Involved:1. Validity of the notice for reopening the assessment for the assessment year 2009-10.2. Sufficiency of the reasons recorded by the Assessing Officer for reopening the assessment.3. Applicability of the principle of 'change of opinion' in the context of reopening assessments processed under Section 143(1) of the Income Tax Act, 1961.Issue-wise Detailed Analysis:1. Validity of the notice for reopening the assessment for the assessment year 2009-10:The petitioner challenged the notice issued on 30.03.2016 by the Assessing Officer seeking to reopen the assessment for the assessment year 2009-10. The assessment was initially accepted without scrutiny under Section 143(1) of the Income Tax Act, 1961. The Assessing Officer received information from the investigation wing indicating that the petitioner had received share application money of Rs. 10 lacs from M/s. Bhumidev Credit Corporation Ltd, a non-genuine company. The Director of M/s. Bhumidev Credit Corporation Ltd admitted that the company was involved in issuing cheques against equivalent cash. Based on this information, the Assessing Officer formed a belief that the income chargeable to tax had escaped assessment.2. Sufficiency of the reasons recorded by the Assessing Officer for reopening the assessment:The court observed that the Assessing Officer had specific reasons to believe that income chargeable to tax had escaped assessment. The information received suggested that M/s. Bhumidev Credit Corporation Ltd had given bogus accommodation entries worth Rs. 75 lacs to M/s. Kutch Ginning and Spinning Pvt. Ltd. in the form of share application money. The Director's statement confirmed the company's involvement in issuing cheques against equivalent cash amounts. The petitioner had also received Rs. 10 lacs from M/s. Bhumidev Credit Corporation Ltd. The court held that these reasons were sufficient for the Assessing Officer to form a belief that income had escaped assessment.3. Applicability of the principle of 'change of opinion' in the context of reopening assessments processed under Section 143(1) of the Income Tax Act, 1961:The court emphasized that the scope for reopening an assessment not framed after scrutiny is much wider. The principle of 'change of opinion' does not apply in cases where the assessment was processed under Section 143(1) without scrutiny. The Supreme Court in Assistant Commissioner of Income Tax vs. Rajesh Jhaveri Stock Brokers P. Ltd. clarified that an intimation under Section 143(1)(a) is not an assessment order, and thus, the question of change of opinion does not arise. The court reiterated that at the stage of reopening, what is required is a reason to believe that income has escaped assessment, not conclusive proof.Conclusion:The court dismissed the petition, holding that the Assessing Officer had sufficient reasons to believe that income chargeable to tax had escaped assessment. The notice for reopening the assessment was valid. The court also noted that the petitioner could raise all legal contentions before the Assessing Officer during the reassessment proceedings.