TaxTMI 
TaxTMI 
2013 (5) TMI 665
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....insofar as the passing of a reassessment order was concerned, though the proceedings were to continue. Apparently there was some confusion in the minds of the respondent with regard to that order as a result of which the above mentioned reassessment order came to be passed on 22.11.2007. And, that order was subsequently stayed by this court by an order dated 27.03.2008. 3. We are not so much concerned about the fact that a reassessmnet order had been passed despite there being a direction that no such order be passed. We are, in fact, more concerned about the validity of the notice under section 148 and the initiation of proceedings under section 147 of the said Act. 4. Mr Ganesh, the learned senior counsel appearing on behalf of the petitioner submitted that this was a clear case of change of opinion and as such the initiation of proceedings under section 147 of the said Act were invalid. In this context, Mr Ganesh submitted that in the hearing conducted on 27.03.2006, in the course of the original assessment proceedings under section 143(3) of the said Act, the assessing officer had made an entry in the note sheet to the following effect:- "Regarding TPO order, nothing n....
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....er under section 143(3) on 30.03.2006 wherein no disallowance was made in respect of bad debts written off by the assessee in its books of account. Thus, according to the learned counsel for the petitioner, the assessing officer had asked for specific details which were supplied by the assessee and after the assessing officer examined the same he was satisfied that no disallowance needed to be made on account of bad debts written off. This, according to the the learned counsel for the petitioner, meant that the assessing officer had, in fact, applied his mind and had formed an opinion to the effect that no disallowance could be made in respect of the bad debts written off by the assessee. 5. Thereafter, the notice dated 18.04.2007 was issued under section 148 seeking the reopening of the assessment completed on 30.03.2006. When the petitioner asked for the reasons which purportedly formed the basis of belief of the assessing officer as required under section 147 of the said Act, the assessing officer furnished the following reasons:- "Maruti Udyog Ltd. Assessment Year-2003-04 Reasons for issuing notice u/s 148 of the I.T. Act, 1961 The return of income in this case w....
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....Therefore, there was no question of there being a change of opinion, as, according to the assessing officer, no opinion had been formed in the first instance. Of course in the said order rejecting the objections there was no mention of the issue with regard to the bad debts being on the capital account. 8. This was followed by the reassessment order dated 22.11.2007 wherein an addition of Rs. 29,81,515/- was made under the head bad debts disallowed and which were added to the income of the petitioner/assessee. Furthermore, by virtue of the reassessment order dated 22.11.2007 an addition of Rs. 112,90,00,000/- was also made on account of royalty paid. According to Mr Ganesh, the learned senior counsel for the petitioner, the issue of bad debts was only used as a 'key' to open up reassessment proceeding of which the issue of royalty was the main target. In any event, he submitted, the petitioner's case fell squarely within the parameters of the decision of this court in the case of CIT v. Usha International Ltd.: 348 ITR 485 FB (DEL). He drew our attention straightway to paragraph 13 of the said decision, which inter alia, reads as under:- "13. It is, therefore, clear from the ....
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....d formation of an opinion. Paragraph 23 of the said decision reads as under:- "23. The said observations do not mean that even if the Assessing Officer did not examine a particular subject-matter, entry or claim/deduction and, therefore, had not formed any opinion, it must be presumed that he must have formed an opinion. This is not what was argued by the assessee or held and decided. There cannot be deemed formation of opinion even when the particular subject-matter, entry or claim/ deduction is not examined." The above observation is in the context where the assessing officer had not examained a particular subject matter, entry or claim/deduction. But the facts of the present case are different. The assessing officer had raised a specific query with regard to the issue of bad debts/advances written off. Therefore, in the present case it cannot be said that the assessing officer did not examine the issue of bad debts/advances which had been written off by the petitioner/assessee. The majority view of the Full Bench in Usha International Ltd. (supra) quoted in paragraph 23 would therefore not apply to the facts of the present case as it is not a question of a deemed formation....
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....en query but still the Assessing Officer in the first round/ original proceedings may have examined the subject-matter, claim, etc., because the aspect or question may be too apparent and obvious. To hold that the assessing officer in the first round did not examine the question or subject-matter and form an opinion, would be contrary and opposed to normal human conduct. Such cases have to be examined individually." It is apparent from the above extract that even in cases where no query is raised by the assessing officer in the course of the original assessment proceedings it may yet be held that the assessing officer had examined the subject matter. This is so because the aspect or question in issue may be too apparent and obvious. However, the Full Bench cautioned by stating that such cases would have to be examined individually. It is, therefore, clear that even where no query is raised by the assessing officer and there is no discussion in the assessment order, it may yet be a case where the assessing officer would be considered to have examined the issue. However, we are not concerned with those type of cases inasmuch as in the present case the assessing officer had clearly....