TaxTMI 
TaxTMI 
2017 (12) TMI 1131
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....ecember, 2010 rejecting objections in respect of the Assessment Year 2005-06. 2. The facts in brief are as follows:- The petitioner, a company engaged in the business of manufacturing, trading and marketing of pesticides had filed its return of income on 24th October, 2005 declaring the income of Rs. 8.76 crores accompanied by detailed working as also a report of a Chartered Accountant under Section 115JB of the Act. On 10th December 2007 an Order U/s 143(3) came to be passed determining total income at Rs. 8,87,36,110/- under section 115JB. The respondent no.1-Deputy Commissioner of Income Tax passed an order dated 10th December, 2007 assessing income under Section 115JB at Rs. 8.87 crores. The Assessing Officer made certain additions un....
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....the ground that the AO had erred in resorting to reopening of the assessment. The Tribunal allowed the cross appeal, held that the order dated 29th December 2008 in reassessment proceedings was bad in law and dismissed the appeal by the revenue as being infructuous. 6. The Revenue challenged the said order of the Tribunal in this Court by filing Income Tax Appeal (L)No.2160 of 2010. Pending the said appeal, on 25th March, 2010 the petitioner once again received a notice under Section 148 of the Act dated 24th March, 2010 in respect of the Assessment Year 2005-06 seeking to reopen/reassess the completed scrutiny and reassessment proceedings. On 30th March, 2010 and on 19th April, 2010 the petitioner requested for the reasons recorded for re....
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....and show cause by 11th October, 2010 as to why the excess loss set off should not be rejected. On 11th October, 2010 the petitioner reiterated its objections and submitted that by virtue of the decision of GKN Driveshafts (supra), the procedure set out for disposal of objection must be followed before proceeding with the assessment. 8. Meanwhile, the letter was sent on 18th November, 2010 calling upon the revenue to decide the objections. However, despite this on 20th November, 2010 the petitioner received an Assessment Order in contravention of the directions of the Supreme Court and this Court. The order was passed under Section 143(3) read with Section 147 of the Act along with notice of demand raising a demand of Rs. 2.76 crores to be ....
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.... the reasons recorded based on the material available on record. He contends that there is a prima facie mistake apparent on the record since the petitioner was not entitled to fetch double benefit on account of unabsorbed depreciation, and therefore, reopening of the assessment was the only solution. According to the Assessing Officer, a false claim had been made to set off unabsorbed depreciation against the book profits of Assessment Year 2005-06 which have already been set off in 2004-05. The contention that there is a change of opinion has been denied. 11. Mr. Pardiwala, the learned Senior Counsel, appearing on behalf of the petitioner pointed out that the impugned orders were passed in the teeth of settled law. He submitted that the....
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....peration of the impugned notice dated 24th March, 2010 and the order rejecting the objections dated 24th December, 2010 came to be stayed. The respondents were restrained from taking any steps in the matter. Interim relief has continued to operate till disposal of the petition. 14. The decision of this Court in the case of the assessee for the Assessment Year 2004-05 [see (2010) 323 ITR 54 (Bom)] holds that a mere change of opinion would not justify the Assessing Officer in seeking a recourse to the powers under Sections 147 and 148 unless there is tangible material before the Assessing Officer to prove that income chargeable to tax has escaped assessment. This Court further held, while allowing the petition, during the course of the asses....
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....ad escaped assessment and secondly that the assessment had to be reopened only on account of change of opinion. While dealing with the said two, the respondent concluded in paragraph 12 and 13 of the impugned order that it is upon verification of the case records (emphasis supplied) that the claim for unabsorbed depreciation of Rs. 17,91,09,548/- was found to have been (allegedly) wrongly claimed and that the reasons recorded are not based on any suspicion but on a solid foundation of law and the facts and placed reliance on the decision of the Supreme Court in the case of Rajesh Jhaveri Stock Brokers Pvt. Ltd. (2007) 291 ITR 500 in support of the rejection of objections. 17. In our view, considering the facts and circumstances of the case....