TaxTMI 
TaxTMI 
2014 (3) TMI 28
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....said return of income was accompanied with Tax Audit Report under section 44AB of the Act. The case was selected for scrutiny assessment by issuing the notice under section 143(2) of the Act. Assessee declared income at Rs.NIL after claiming deduction under section 80IB of the Act of Rs.50,89,715/- and under section 80JJA on other income of Rs.1,69,65,718/-. The Assessing Officer passed the assessment order dated 31.12.2009 assessing the total income at Rs.13,01,119/- denying the deduction under sections 80IB and 80JJA on other income of Rs.13,01,119/-. That after a period of four years the impugned notice under section 148 of the Act has been issued on 03.12.2012 i.e. after four years of the end of the assessment year for reassessing the income of the petitioner, whereby, jurisdiction has been assumed to reassess the income for the assessment year 2007-08. The reasons recorded under Section 148(2) of the Act was also served upon the petitioner along with the notice. After receipt of the notice alongwith the reasons recorded under section 148(2) of the Act, the petitioner vide letter dated 07.12.2012 requested the respondent to treat the original return of income as return of incom....
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....upreme Court and this Court and various High Courts, in catena of decisions, reopening on either of the aforesaid grounds is not valid. 4.2 It is submitted that the reopening is based on change of opinion which is not permissible under the law. It is submitted that in the present case while submitting the return of income and during the original assessment proceedings the petitioner claimed deduction under section 80JJA and on the same the AO send a questionnaire vide communication dated 24.12.2009 and the petitioner replied to the same and thereafter the same has been accepted by the AO while framing the assessment order for the assessment year under consideration. It is submitted that as such AO at the relevant time applied his mind and when thereafter accepted the claim of the deduction under section 80JJA of the Act, it cannot be said that there was any concealment and/or failure on the part of the assessee to submit the correct facts for which reopening under section 148 of the Act is permissible. It is submitted that therefore it can be said that the reopening is based on change of opinion which is not permissible. In support of his above submission, he has relied upon the....
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....reopening is justified. It is submitted that the second ground on which the reopening has been effected is with regard to incorrect claim of deduction under section 80IB of the Act. It is submitted that said claim has also been erroneously made despite the petitioner being aware of the above position. It is submitted that it is in this set of circumstances that the income of the assessment in view of the suppression on the part of the petitioner, of facts material for the purpose of assessment. It is submitted that therefore it cannot be said that the reopening proceedings are bad in law and/or without jurisdiction. 5.2 Relying upon the decision of the Hon'ble Supreme Court in the case of Sri Krishna(P.) Ltd. v. ITO 221 ITR 538as well as another decision of the Hon'ble Supreme Court in the case of Sowdagar Ahmed Khan v. ITO [1968] 70 ITR 79, it is requested to dismiss the present special civil application. 6. Heard Shri Hardik Vora, learned advocate appearing on behalf of the petitioner and Shri M.R. Bhatt, learned counsel appearing on behalf of the respondent. 6.1 At the outset it is required to be noted that by impugned notice issued under section 148 of the Act,....
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....cts." Therefore, the original assessment is sought to be reopened on the aforesaid grounds. As stated hereinabove, the original assessment is sought to be reopened in exercise of powers under section 148 of the Act after a period of four years of the end of assessment year and therefore, as per first proviso to section 147 of the Act, no action shall be taken for reopening of the assessment after the period of four years from the end of the relevant assessment year, unless any income chargeable to the tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to the notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for assessment, for that assessment year. Unless the aforesaid condition is satisfied, there cannot be any reopening of the assessment. Under the circumstances while initiating the reassessment proceedings by which the original assessment is reopened after the expiry of period of four years from the end of the relevant assessment year, it can be only when there was an escapement of assessment when a....