AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (2) TMI 396
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....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 notice dated 30/03/2016 issued by the respondent - Assessing Officer by which the Assessing Officer has sought to reopen the assessment for the Assessment Year 2009-10 in exercise of powers under Section 148 of the Income Tax Act (hereinafter referred to as "the Act") on the ground that the income chargeable to tax has escaped the assessment within the meaning of Section 147 of the Act. [4.0] The facts leading to the present Special Civil Application in a nutshell are as under; [4.1] The petitioner - assessee filed the return of income for the Assessment....
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.... (Investigation), Unit-I, Surat vide confidential letter No.SRT/DDIT (Inv.)/Inquiry/2015-16 dated 24/07/2015. As per the information, the Directorate of Revenue Intelligence (DRI) on 27/11/2008 had confiscated six consignment of imported rough diamonds weighing 37546 carats of the assessee company at Surat Hira Bourse, Surat on the basis of intelligence input of over invoicing of imported rough and cut and polished diamonds by the Indian importers with nexus with Singapore based exporters. In this respect, the DRI authorities have issued show cause notice to assessee company and other its accompliance. In the assessee's case, as per the imported documents the declared total value of the imported rough diamonds i.e. six consignment of diamon....
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.... case for issuing notice under Section 148 of the Act." [4.2] On receipt of the reasons recorded, the petitioner - assessee raised detailed objections submitting that the entire issue for which the assessment is sought to be reopened was in fact gone into by the Assessing Officer while framing the scrutiny assessment under Section 143(3) of the Act, and therefore, firstly there was no failure on the part of the petitioner - assessee in not disclosing true and correct facts and secondly the reopening is based on change of opinion by the subsequent Assessing Officer. The objections raised by the petitioner - assessee has been disposed of by the Assessing Officer vide communication dated 10/11/2016 by which the Assessing Officer has not agre....
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....n the basis of the show cause notice issued by the DRI, on the basis of which now the assessment is sought to be reopened, original assessment was taken under scrutiny and after detailed inquiry the Assessing Officer thereafter framed the scrutiny assessment under Section 143(3) of the Act. It is submitted that therefore the subsequent reassessment on the basis of the same material is nothing but change of opinion, and therefore, the reassessment proceedings is not permissible. In support of his above submissions, he has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Commissioner of Income-tax Vs. Kelvinator of India Ltd. reported in [2010] 320 ITR 561 SC. He has also relied upon the decision of the Hon'ble Sup....
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....ned notice and reopening the assessment for the Assessment Year 2009- 10. Making the above submissions, it is requested to dismiss the present petition. [7.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that by the impugned notice the Assessing Officer has sought to reopen the assessment for the Assessment Year 2009-10, and therefore, unless and until the condition precedent as mentioned in proviso to Section 147 of the Act is satisfied, there may not be any reopening of the assessment. As per proviso to Section 147 of the Act if it is found by the Assessing Officer that there was failure on the part of the petitioner - assessee in not disclosing true and c....
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.... aforesaid six imported consignments of rough diamonds was in fact gone into by the Assessing Officer and considered in detail and thereafter the Assessing Officer framed the scrutiny assessment under Section 143(3) of the Act, and therefore, subsequent reassessment proceedings and /or reopening of the assessment on the very issue, more particularly, with respect to the consignment of the imported six rough diamonds can be said to be mere change of opinion. As observed hereinabove, the issue was gone into in detail by the Assessing Officer while framing the scrutiny assessment under Section 143(3) of the Act. Under the circumstances, considering the decision in the case of Kelvinator of India Ltd. (Supra) merely on the basis of the change o....