TaxTMI 
TaxTMI 
2018 (6) TMI 840
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.... 1961 ('IT Act' for brevity). 2(ii) The appellant before us, a partnership firm, which goes by the name M/s.Indira Industries, is hereinafter referred to as 'Assessee' and the sole respondent before us, namely the Principal Commissioner of Income Tax, Chennai, is hereinafter referred to as 'Revenue', both for the sake of convenience and clarity. Other authorities of Income Tax Department i.e., other than the sole respondent are referred to as 'IT Department' for the sake of convenience and enhanced clarity. 2(iii) A notice dated 16.08.2017, issued by the Revenue to the Assessee, bearing Reference C.No.852 (5)/PCIT-8/2017-18 (hereinafter referred to as 'Impugned Notice'), was called in question and assailed by the Assessee in a writ petition being W.P.No.22978 of 2017 as narrated by us supra in the opening paragraph of this judgment. 2(iv) Assessee filed its return of income on 30.09.2012 (within time) for the Assessment Year 2012-2013 (hereinafter referred to as 'said Assessment year' for the sake of convenience and clarity) under Section 139 of the IT Act. 2(v) A scrutiny assessment order under Section 143(3) of the IT Ac....
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....the learned single Judge on two main grounds. The two main grounds, in simple terms, can be crystallized and set out as follows: a) As the original re-assessment was done on the basis of Assessee accepting the position, the same issue cannot be reopened under Section 263 of the IT Act as it tantamounts to 'Change of Opinion'; and b) The impugned notice lacks jurisdiction as it is hit by limitation prescribed by sub-section (2) of Section 263. It was contended by the Assessee that under Section 263(2), the impugned notice ought to have been issued within two years from the end of the financial year in which the order sought to be revised was passed. 3(iii) In support of this first point i.e., 'Change of Opinion', Assessee pressed into service Commissioner of Income-Tax Vs. Sat Pal Aggarwal case reported in [2007] 293 ITR 90 (P&H). To be noted, this is a judgment of a Division Bench of the Punjab and Haryana High Court. To buttress the second point pertaining to Limitation under Section 263(2) of the IT Act, the Assessee pressed into service Commissioner of Income Tax, Chennai Vs. Alagendran Finance Ltd., case reported in [2007] 162 Taxman 465 (SC). 3(iv) ....
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.... point urged by the Assessee. As would be evident from the narration of facts and discussion supra, the second point raised by the Assessee is that the impugned notice is barred by limitation, to be precise, it is barred by Section 263(2) of the IT Act is the plea of the Assessee. In support of the second point, as mentioned supra, Assessee pressed into service Alagendran Finance case (citation given supra elsewhere in this judgment). 3(xii) Learned single Judge has noticed Alagendran Finance case and has also extracted Paragraph 7 of Alagendran Finance case. Learned Judge has held that Alagendran Finance case does not help the Asseessee, as the impugned notice has been issued within two years from the date of reassessment, i.e., within two years from 30.12.2016. 3(xiii) Learned senior counsel for the Assessee contended before us that the date of reassessment cannot be the reckoning date and that the date of original assessment in the instant case being 25.02.2015 alone should be the reckoning date. To buttress this submission, learned senior counsel stressed that the term occurring in sub-section (2) of Section 263 is 'order' and not 'notice'. We deem it appr....
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.... therefore have no hesitation in holding that the reckoning date qua the impugned notice for the purpose of Section 263(2) of IT Act is not the date of re-assessment being 30.12.2016, but the date of scrutinizing the assessment i.e, 25.02.2015. 3(xix) As would be evident from the narration of facts and discussion supra, the impugned notice is dated 16.08.2017 and is therefore, clearly beyond two years when reckoned from 25.02.2015. 3(xx) Therefore, the Assessee before us was clearly entitled to succeed on the second point raised before the learned single Judge. To be noted, we have already negatived the first point regarding 'Change of Opinion'. 3(xxi) Learned Senior Standing Counsel for Revenue pressed into service MAK Data P. Ltd. Vs. Commissioner of Income Tax [(2013) 358 ITR 593 (SC)] to say that even agreed basis orders can be revisited and Malabar Industrial Co. Ltd. Vs. Commissioner of Income Tax [(2000) 243 ITR 83 (SC)] to say that Revenue in exercise of powers under Section 263 of IT Act can travel beyond the assessing officer in cases of non-application of mind. MAK Data Systems case deals with penalty under Section 271 (1) (c) of IT Act which operates in....