AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (4) TMI 1376
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....under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as 'the IT Act') and the order dated 17.08.2005 passed by the Income Tax Officer. 2) Brief facts:- (a) M/s TechSpan India Private Ltd.-the Respondent is a private limited company incorporated under the Companies Act, 1956 and is engaged in the business of development and export of computer softwares and human resource services. It is also relevant to mention here that the Respondent-Company is also eligible for deduction under Section 10A of the IT Act. (b) On 25.10.2001, the Respondent filed its return of income for the Assessment Year (AY) 2001-02 declaring a loss of Rs. 3,31,301/-. The Respondent, while filing the return for the aforementioned period, has declare....
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....ved by the Revenue. (e) Being aggrieved, the Respondent challenged the above said show cause notice dated 10.02.2005 as well as the order dated 17.08.2005 before the High Court by filing a Writ Petition (C) No. 14376 of 2005. Vide judgment and order dated 24.02.2006, the High Court set aside the show cause notice dated 10.02.2005 as well as the re-assessment order dated 17.08.2005. (f) Being aggrieved, the Revenue has filed this appeal before this Court. 3) Heard Mr. Rajesh Ranjan, learned counsel for the Appellant and Mr. C.S. Agarwal, learned counsel for the Respondents and perused the records. Point(s) for consideration:- 4) The only point for consideration before this Court is whether the re-opening of the completed assessment is....
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....17.08.2005 was not a speaking order and was rightly set aside by the High Court. Learned counsel finally submitted that the High Court has rightly set aside the show cause notice dated 10.02.2005 and the order dated 17.08.2005 and no interference is called for by this Court in the matter. Discussion:- 8) To appreciate the present controversy between the parties, it would be appropriate to refer to Sections 147 and 148 of the IT Act. For ready reference, relevant portion of Sections 147 and 148 of the Act are reproduced below:- "147. Income escaping assessment:-- If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 14....
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....ponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed, and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under Section 139: x x x x x x (2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so." The language of Section 147 makes it clear that the assessing officer certainly has the power to re-assess any income which escaped assessment for any assessment year subject to the provisions of Sections 148 to 153. However, the use of this power is conditional upon the fact that the assessing office....
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....on of opinion and then a change thereof. In terms of assessment proceedings, it means formulation of belief by an assessing officer resulting from what he thinks on a particular question. It is a result of understanding, experience and reflection. 11) It is well settled and held by this court in a catena of judgments and it would be sufficient to refer Commissioner of Income Tax, Delhi vs. Kelvinator of India Ltd. (2010) 320 ITR 561(SC) wherein this Court has held as under:- "5....where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to re- open the assessment. Therefore, post-1st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the ....
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....nion on the questions that are raised in the proposed re-assessment proceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in the re-assessment proceedings. 13) The fact in controversy in this case is with regard to the deduction under Section 10A of the IT Act which was allegedly allowed in excess. The show cause notice dated 10.02.2005 reflects the ground for re-assessment in the present case, that is, the deduction allowed in excess under Section 10A and, therefore, the income has escaped assessment to the tune of Rs. 57,36,811. In....