2015 (5) TMI 221

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....ent petition is taken up for final hearing today. 3. By way of this petition under Article 226 of the Constitution of India, the petitioner - assessee has prayed for an appropriate writ, order or direction to quash and set aside the impugned reassessment proceedings initiated under Section 147/148 of the Income Tax Act (hereinafter referred to as the 'Act'). 4. That the assessee filed return of income for A.Y.2009- 2010 which came to be finalized by order dated 09.12.2010. It appears that the assessee filed return of income declaring income of Rs. 43,87,671/- and by order of assessment, the income was assessed under Section 143(3) of the Act at Rs. 49,62,230/-. That thereafter, within a period of four years from the date of assessment....

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.... the Assessing Officer disallowed expenditure of Rs. 1,19,00,000/- being labour charges paid to the sub-contractors. It is submitted that the assessee did furnish all the particulars with respect to VAT expenses which came to be considered by the Assessing Officer and thereafter, disallowed the expenditure of Rs. 41,23,784/- under Section 43B of the Act. It is submitted that therefore, the reopening of assessment for the reasons recorded is nothing but change of opinion by the Assessing Officer and, therefore, the reopening of assessment is not permissible. 5.1. It is further submitted by Shri Bhati, learned advocate appearing for the assessee that in any case, the reassessment proceedings are on the basis of the audit objections raised ....

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....recorded can be said to be change of opinion by the Assessing Officer or not?, after considering the material on record, we were not satisfied that the reassessment proceedings for the reasons recorded can be said to be change of opinion. 6.1. However, the petition is to succeed on the second ground i.e. the contention of the learned advocate for the petitioner that the reassessment proceedings are on the basis of the audit objections raised by the audit party. At the outset, it is required to be noted that though the objections raised by the assesese against the reassessment proceedings and against the reasons recorded, the Assessing Officer had not dealt with the aforesaid aspect at all though, in the affidavit-in-reply filed by the As....

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....l assessment order and has categorically stated that the audit objections are not acceptable as the objections are raised on presumption and surmises. If that be so, then it is worst. On one hand, the Assessing Officer is trying to justify/support the original assessment order and on another hand, he is reopening the assessment and/or initiating the reassessment proceedings. Therefore, as such, the subjective satisfaction of the Assessing Officer while reopening the assessment is vitiated. 7. The issue involved in the present petition is squarely covered by the decisions of the Division Bench of this Court in the case of Shilp Gravures Ltd. (Supra), in the case of Vodafone West Ltd. (Supra) and in the case of Mayur Wovens Pvt. Ltd. (supr....