High Court quashes assessment notice for Assessment Year 1994-95, citing lack of new material.

The High Court quashed and set aside the Notice seeking to reopen the assessment for Assessment Year 1994-95 under Article 226 of the Constitution of India. The court held that the Notice was without jurisdiction as it was based on a change of opinion and did not present any new tangible material not previously available during the original assessment, which had already considered the issue of deemed dividend under Section 2(22)(e) of the Income Tax Act. The court ruled in favor of the petitioners, emphasizing the importance of tangible material to justify reopening an assessment.

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Issues:
Challenge to Notice under Article 226 of the Constitution of India for reopening assessment for Assessment Year 1994-95 based on deemed dividend under Section 2(22)(e) of the Income Tax Act, 1961.

Analysis:
1. The petition challenges the Notice dated 10th August, 1998, seeking to reopen the assessment for Assessment Year 1994-95 under Article 226 of the Constitution of India. The Assessing Officer added an amount as deemed dividend under Section 2(22)(e) of the Act during the original assessment, resulting in a total taxable income of &8377; 14.90 lakhs.

2. The reasons recorded for reopening the assessment highlighted that the Assessing Officer considered only the credit balance in the account, leading to under-assessment. The petitioners argued that the impugned notice was without jurisdiction, as it was based on a change of opinion regarding the same material already considered during the original assessment.

3. The petitioners contended that the impugned notice, issued within four years from the end of the relevant assessment year, was in respect of an assessment done under Section 143(3) of the Act. The court referred to the Apex Court's decision in Commissioner of Income Tax Vs. Kelvinator of India Ltd., emphasizing the importance of having tangible material to justify reopening an assessment.

4. The court found that the Assessing Officer had already examined the issue of deemed dividend during the original assessment proceedings, resulting in the addition of &8377; 8.17 lakhs under Section 2(22)(e) of the Act. The reasons recorded for reopening did not present any new tangible material that was not previously available and examined during the initial assessment.

5. Consequently, the court held that the impugned notice was devoid of jurisdiction as it was solely based on a change of opinion, attempting to review the original assessment order. The court quashed and set aside the Notice dated 10th August, 1998 issued under Section 148 of the Act, ruling in favor of the petitioners.

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