TaxTMI 
TaxTMI 
2017 (3) TMI 982
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....t is undisputed that the petitioner complied the said order and deposited the amount so determined. A notice under section 148 of the Act was again issued upon the petitioner seeking to reopen the assessment for the said assessment year which was challenged by the petitioner in a writ petition being WP No. 382 of 2010 before this Court. It would be apposite to narrate the excerpt from the said notice which was primarily issued as the petitioner company showed profit of investment as long term gain and claimed exemption under section 10(38) of the Act. Though the same should be treated as business income. The writ petition was disposed of on 5th April, 2010 directing the petitioner to file written objection to the said notice and the competent authority was directed to dispose of the said objection after giving an opportunity of hearing before proceeding with the assessment in respect of the said assessment year in question. Admittedly, the petitioner filed objection in terms of the direction passed by this court in the earlier writ petition. Apart from the other objection, one of the objections taken by the petitioner is the basis for issuance of notice under section 147 of the A....
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.... an assessment under sub-section [3] of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to 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 a notice issued under sub-section [1] of section 142 or section148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year. Provided further that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. S.148. Before making the assessment, reassessment or recomputation under section 147, the AO shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresp....
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....s inability to accept the same. The matter was placed before the CIT as per the omnivorous direction of the CBDT and it is the CIT who suddenly formed an opinion that the assessment should be reopened and directed the Assessing Officer to issue notice upon the assessee petitioner under section 148 of the Act. The point emerges from the aforesaid undisputed facts are whether proceeding under section 148 of the Act can be initiated by a competent authority on the order and direction of his higher authority and whether the audit objection which was unacceptable to the Assessing Officer may be treated as escapement of assessment order on mere change of opinion? Taking second point first; the notice under section 148 was issued containing a categorical averments that the exemption on account of capital gain cannot be claimed but should be treated as the business income. In the impugned order, the assessing officer though observed that the change of opinion did not confer jurisdiction upon him to initiate proceeding under the aforesaid provision but it is detected that there has been an erroneous nature of earlier assessment. The Assessing Officer has the jurisdiction to proceed with ....
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....ave proceeds to argue on the point that the writ petition challenging the notice after filing the objection is not maintainable and placed reliance upon judgement of the Madras High court in case of Tamil Nadu Petroproducts Ltd. Vs. Commissioner of Income-Tax and Another reported in [2011] 330 ITR 342. The aforesaid judgement does not relate to an issue involved in the instant writ petition though the challenge is also made to a notice issued under section 148 of the Act. But the challenge is founded on the order passed by the Assessing Officer determining the preliminary objection and upholding its jurisdiction. The other judgements relied upon by the respondents in case of Honda Siel Power Products Vs. Deputy Commissioner of Income Tax and Another reported in [2012] 340 ITR 64 (SC) cannot be said to be the ratio laid down therein so as to bind all courts of the country because of article 141 of the Constitution of India. The Apex Court refuses to interfere in the matter as the materials disclosed therein do not justify reopening of the assessment. The judgement should not be read as a statute. Little difference or additional facts may invite a diametrically opposite decision and....
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....nd consequently direction was passed upon the Assessing Officer to cause a notice under section 148 of the Act and proceed to reassess. There is no hesitation in my mind that the Assessing Officer simply acted on the dictate of his superior officer without applying his/her mind to the cause for which the proceeding was initiated. The Apex Court in case of Orient Paper Mills Ltd. Vs. Union of India reported in AIR 1969 SC 48 deprecated such action of the subordinate officer to act and proceed on the dictate of the superior office in the following words: "If the, power exercised by the Collector was a quasi judicial power-as we hold it to be-that power cannot be controlled by the directions issued by the Board. No authority however high placed can control the decision of a judicial or a quasi judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate-authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that the assessing authorities as well as the appellate authorities are judges in ....