TaxTMI 
TaxTMI 
2006 (11) TMI 165
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....allegation that respondent No. 1 had no reasons to believe that the petitioner' s income, chargeable to tax for the aforesaid assessment year 1994-95, had escaped assessment. 2. The facts giving rise to the writ petition are very briefly enumerated hereinafter. 3. The petitioner claims to carry on business of export, inter alia, of light engineering goods and marine products as sole proprietor of Raylon Industries and also of trading in, inter alia, textile goods as sole proprietor of Raylong Trading Company. According, to the petitioner, the said two concerns of which the petitioner is proprietor, are independent of each other and the accounts of the said two concerns are separately prepared and audited. 4. The petitioner file....
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.... mainly on the ground that the action against the petitioner is barred by limitation. 9. Reference has, in this context, been made to the proviso to section 147 of the Income-tax Act which is extracted hereinbelow : "147. 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 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerne....
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.... in respect of which he is assessable under this Act during the previous year corresponding 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 . . . (2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so. 149. Time limit for notice.-(1) No notice under section 148 shall be issued for the relevant assessment year,- (a) if four years have elapsed from the end of the relevant assessment year, unless the case fa....
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....ew, rightly, that an assessment could be reopened under section 147. Where, however, an order of assessment had been made, there was an express bar to initiation of action after expiry of four years from the relevant assessment year except in the circumstances stated in the proviso to section 147. Section 149(1)(b) pertains to time limit for issuance of notice where an assessment had been made under section 143(3). Action might, however, be initiated within the time limit of four years from the end of the relevant assessment year. Notice under section 148 would also have to be issued within four years except where the income chargeable to tax which had escaped assessment was likely to be rupees one lakh or more, in which case notice might b....
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....herein. These exceptions are subject to section 149. Section 149 governs cases provided for in the exception clause relating to assessment after the four years from the end of the assessment year." 17. In view of the aforesaid judgment of the Division Bench, I cannot but hold that the impugned action against the petitioner is barred by limitation, such action not having been initiated within four years from the end of the relevant assessment year. Action under section 147 being barred by limitation, the impugned notice is liable to be set aside. The impugned notice does not disclose any reasons for reopening assessment. Reasons have, however, subsequently been disclosed to the petitioner. The reasons disclosed are as follows : "....
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....int CIT reported in [2005] 275 ITR 155, cited by Mr. Bajoria, this court held that assessment could not be reopened by reason of mere change of opinion of the assessing authority on the same facts. The same view has been taken by this court in the case of Mercury Travels Ltd. v. Deputy CIT reported in [2002] 258 ITR 533. 21. In this case too, the assessing authority has purported to reopen the assessment upon change of opinion on the same facts. 22. Significantly, the Revenue has in its affidavit-in-opposition purported to take yet another ground, that is, benefit of section 80HHC could not be allowed unless export sale proceeds were received in convertible foreign exchange. As rightly pointed out on behalf of the petitioner by Mr. Ba....