TaxTMI 
TaxTMI 
2011 (7) TMI 520
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.... 30.03.1990. Subsequently, the assessment was completed under Section 143(3) of the Act on 31.03.1992 on total income of Rs.8,61,270/- Thereafter, notice under Section 148 of the Act was issued on 13.01.1997 and the same was served upon the petitioner on 16.01.1997. On receipt of the aforesaid notice, on 05.02.1997 the petitioner requested the Assistant Commissioner Income Tax to inform the reasons for reopening of the assessment. In response to notice under Section 148 of the Act the assessee filed its return on 28.10.1997 disclosing total loss at Rs.7,34,489/-. On 18.11.1998 the Deputy Commissioner of Income Tax, Special Range, Bhubaneswar communicated the reasons for re-opening the assessment on the grounds that the assessment was completed under Section 143(3) on the total income of Rs.8,61,270/- for the assessment year 1989-90, after allowing deduction of Rs.29,09,632/- for investment allowance under Section 32-A of the Act. As the assessee company is not engaged in the activities of manufacturing and not producing any article or things, it is not entitled to any deduction on investment allowances and therefore, an amount of Rs.29,09,632/- for the assessment year 1989-90 has e....
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....ated in Section 147. The Assessing Officer applying its mind having allowed the deduction claimed under Section 32A cannot reopen the assessment by changing his opinion as the same is not permissible under the law. The time limit to take action under Section 263 seems to have expired and the Department is trying to take action under Section 147 of the Act. The notice of reassessment under Section 148 having been issued after four years, the same is bad in law. The decision of the apex Court in N.C. Budharaja (supra) is not applicable to the petitioner's case. There is procedural infirmity to the notice issued under Section 148 of the Act. The petitioner also relied on certain judicial pronouncements before the Assessing Officer. The Assessing Officer rejected petitioner's show-cause reply and passed the assessment order holding that in the instant case new information came to the possession of the Assessing Officer in the form of judicial pronouncements as laid down by the apex Court in N.C. Budharaja's case in the year 1993. The opinion of the Assessing Officer was consequence of the judgment delivered by the Hon'ble Supreme Court; therefore it cannot be said that it is a change o....
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....nvalid in law. The Assessing Officer is not correct to hold that O.J.C. No.16437 of 1998 was dismissed. Mr. Panda, prayed for quashing of the notice under Section 148 and order of re-assessment. 4. Mr. A. Mohapatra, learned Senior Standing Counsel appearing for the Income Tax Department submitted that the petitionerassessee earlier had challenged the validity of the notice under Section 148 of the Act in O.J.C. No.16437 of 1998 and the said writ petition was dismissed by this Court. Therefore, it is not open to the petitioner to challenge again the validity of the said notice in the present writ petition. Moreover, the writ petition is not maintainable as the assessee has alternative remedy to file an appeal under Section 246-A of the Act before the Commissioner of Income Tax (Appeals). The direction of this Court in O.J.C. No.16347 of 1998 dated 26.06.2001 has been duly complied with. Due opportunity was given to the petitioner during the proceeding under Section 147 of the Act and issuance of notice under Section 148 is permissible in law as per the settled position of law. It was further argued that notice under Section 148 was issued after obtaining due approval....
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....s filed this writ petition challenging the notice issued to it under Section 148 of the Income Tax Act, 1961. 2. Heard the learned counsel for the petitioner, and the learned Standing Counsel (Income-tax). Without expressing any opinion on the rival contentions as to the correctness or otherwise of the reassessment notice issued, it is directed that the petitioner may file objection to the same within thirty days from today. On receipt of the objection, the authority concerned shall hear the parties and pass final order within thirty days thereafter. 3. It is submitted that earlier similar matter relating to re-assessment for the assessment year 1993-94 was challenged before this Court in OJC No.1769 of 1999 and the said writ petition was disposed of on 13.07.2000. It is open to the petitioner to bring the same to the notice of the authority considering the matter. We make it clear that if the petitioner feels aggrieved by the order to be passed by the Assistant Commissioner, it is at liberty to prefer appeal before the appellate authority. All other contentions are kept open. With the above observation, the writ petition is disposed of." 8. On perus....