TaxTMI 
TaxTMI 
2008 (7) TMI 486
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....e fact that the assessment framed under s. 148 in itself is bad in law and void on the basis of the change of opinion because the earlier assessment has only been passed by making various enquiries and also after issuing notices under s. 142(1), dt. 4th Dec., 2002 as well as 2nd Sept., 2003 and as such, the whole assessment is merely a change of opinion on the basis of the facts already disclosed and the books of account of the appellant were also duly audited." 3. The briefly stated facts are that the assessee company filed its return of income declaring 'nil' income vide letter dt. 14th Sept., 2001. After processing of return under s. 143(1) of the Act, the notice under s. 143(2) of the Act was issued on 26th Sept., 2002 to complete the assessment. The original assessment was completed under s. 143(3) of the Act vide order dt. 2nd Sept., 2003. Subsequently, the assessee received a notice under s. 148 of the Act dt. 3rd March, 2006, vide which the AO reopened the assessment and wanted to tax the income escaped assessment after recording reasons. For reopening of assessment under s. 147 of the Act, the AO recorded the following reasons for issuance of notice under s. 148 of the ....
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....ssee company framed to show some of the persons as persons specified under s. 40(A)(2), which is evident from the addresses of the depositors admitted with the audit report. 4. In view of the above, I have reasons to believe that income chargeable to tax amounting to Rs. 2,06,604 has escaped assessment for asst. yr. 2001-02 and necessary approval may kindly be accorded to issue notice under s. 148 of the IT Act. if deemed fit." The above notice issued under s. 148 of the Act was within the four years from the end of the relevant assessment year. The assessee, before us has raised this legal issue that during the course of original assessment, the assessee has provided all the information as the same has been made basis for reopening the assessment while issuance of notice under s. 148 of the Act. 4. The learned counsel for the assessee has taken us to the assessee's paper book where at p. 1 the original assessment order is placed. He referred to paras 2, 3 and 4 of the original assessment order, which read as under: "2. In response to the said notice, Miss Aarti M. Shah, chartered accountant, duly authorized representative attended from time-to-time and filed the detail....
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....sp; 66,113 66,113 17. Sawlani Exports 31/3/2001 88,469 88,469 18. Ambica Knitting Mills 31/3/2001 4,01,484 4,01,484 19. Saw1ani Textiles 31/3/2001 1,36,182 1,36,182 ------------------------------------------------------------ In view of this, learned counsel for the assessee relied on the case law of Hon'ble apex Court in the case of CIT vs. Foramer France (2008) 185 CTR (SC) 512 : (2003) 264 ITR 566 (SC), wherein the Hon'ble apex Court has affirmed the decision of Hon'ble Allahabad High Court in the case of Foramer vs. CIT (2001) 166 CTR (All) 129 : (2001) 247 ITR 436 (All), wherein the Hon'ble Allahabad High Court has held that no reopening is possible on the basis of change of opinion. The learned counsel for the assessee also relied on the case law of Jindal Photo Films Ltd. vs. Dy. CIT (1999) 154 CTR (Del) 355 : (1998) 234 ITR 170 (Del). 5. On the other hand, learned Departmental Representative argued that the original order of t....
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.... placed by the assessee before the AO at the time when the original assessment was made and the AO applied his mind to that material and accepted the view canvassed by the assessee, then merely because he did not express this in the assessment order, that by itself would not give him a ground to conclude that income has escaped assessment, and, therefore the assessment needed to be reopened. The assessee has no control over the way the assessment order is drafted. The issues which are accepted by the AO do not find mention in the assessment order and only such points are taken note of on which the assessee's explanations are rejected and additions are made. 7. In this case, the assessee has filed complete details as is evident from the above facts and the details in respect of interests, which have been filed by the assessee vide different letters addressed to the AO, which are placed in assessee's paper book; we feel that the reopening is just merely a change of opinion and nothing else. The change of opinion is not permissible in law as held by the Hon'ble apex Court in the case of Foramer France while confirming the decision of Hon'ble Allahabad High Court, wherein the Hon'bl....