TaxTMI 
TaxTMI 
2021 (1) TMI 957
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....ar under consideration under section 143(3) of the Income-tax Act, 1961 (in short 'the Act') was completed on 30/12/2011 at total income of Rs. 168,77,00,674/-against the returned income of Rs. 7,84,81,841 /-. Subsequent to the assessment, the Assessing Officer noticed that the assessee company had translated the accrued interest on deferred IRAQI dues and provision for interest to subcontractors at exchange rate on last settlement date from Government of India and not at the rate prevalent as on 31/03/2009 ( i.e. last date of the relevant financial year). According to the Assessing Officer, non-observation of the mandatory provision of translating the foreign-exchange transaction on the last date of the financial year, the profit declared by the assessee was lower by an amount of Rs. 6,90,40,000/- and, therefore, the said income was escaped assessment. The Assessing Officer, accordingly, recorded reasons to believe that income escaped assessment and issued notice under section 148 of the Act on 24/03/2014. In the reassessment proceedings completed on 20/02/2015, the Assessing Officer after restating the interest liability keeping in view the dollar exchange rate on the last dat....
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....ed in the case of that assessee in that AY 1991-92. Even in the case of Bawa Abhai Singh, the Hon'ble Delhi High Court (jurisdictional high court) it has been observed, inter alia, "...What is really necessary to be adjudicated in a case of this nature is about existence of relevant material which form foundation of a belief and constitutes reasons for entertaining a belief about escapement of an income...". Further, it is held legally that an Assessing Officer does not have power to review an assessment. Hence, merely giving reason that perusal of records or a past assessment has formed the reason for the belief that income has escaped assessment does not per se make the reopening of an assessment stand in the court of law. In fact, in Madhukar Khosla vs. CIT (2014) 367ITR 165 (Del), relied on by the appellant, it has been observed, inter alia, "The foundation of the AO's jurisdiction and the raison d'etre of a reassessment notice are the "reasons to believe". Now this should have a relation or a link with an objective fact, in the form of information or facts external to the materials on the record. Such external facts or materials constitute the driver, or the key which....
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.... is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief." 5.7 From the above paras, it is observed that the arguments and submissions given by the AR of the appellant appear plausible as they are borne out from records and in accordance with the existing law in this regard. Further, the issue regarding non-restatement of interest in foreign currency and not including it in its income exigible to income tax is by the appellant was already considered and accepted in the original assessment u/s 143(3). Also, the absence of tangible material which formed the basis of the belief - the question as to how did the AO come to peruse the assessment records when the assessment was already completed necessarily, in my opinion, constitutes a 'review' which, an AO is not permitted to do under the Act. Accordingly, in due deference to the decisions of the apex court and the jurisdictional high court mentioned supra, the reopening of the original assessment u/s 143(3) by resorting to Section 147 of the Act based on the reasons mentioned above is, in my opinion, void ab initio and a....
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....es P ltd Vs ITO (2019) 262 Taxman 404 (Bom) - Tulsi Developers Vs DCIT (2013) 353 ITR 530 (Guj) - HK Buikscon Ltd Vs ITO (2011) 339 ITR 535 (Guj) - ACIT Vs Nityanand Infrastructre Ltd. (ITA No. 2255/Mum/2017) - ACIT Vs Ms Seema Dilip Vora ( ITA No. 582/Mum/2017 - Replika Press Private Limited & Anr Vs DCIT (2013) 92 DTR 153 (del) - Madhukar Khosla Vs ACIT(2014) 367 ITR 165 (Del) - PCIT Vs Tupperware India private limited (2016) 284 CTR 68(del) - Turner Broadcasting Systems Asia Pacific Inc. vs DCIT (2016) 380 ITR 412 (del) - Rasalika Trading and Investemnt Co. Pvt Ltd Vs DCIT ( 2014) 365 ITR 447(Del) (ii) that the Assessing Officer has not applied his mind while adopting rate of US dollar for computing interest liability and therefore, reasons need to be rejected on the ground of non-application of mind also. (iii) that no addition has been made on this account in subsequent years and no case of prior year has either been reopened on this account also. 5. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on records. In the case,....
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....essment year, even if there is a full and true disclosure of all material facts in the original assessment' The relevant finding of the Hon'ble High Court is reproduced as under: "7. The crucial expression is "reason to believe". The expression predicates that AO must hold a belief.......by the existence of reasons for holding such a belief. In other words, it contemplates existence of reasons on which belief is founded and not merely a belief in the existence of reasons inducing the belief. Such a belief may not be based merely on reasons but it must be founded on information. As was observed in Ganga Saran & Sons (P) Ltd. vs. ITO (1981) 22 CTR (SC) 112 : (1981) 130 ITR 1 (SC) : TC 51R.639, expression "reasons to believe" is stronger than the expression "is satisfied". Belief entertained by the AO should not be irrational and arbitrary. To put it differently, it must be reasonable and must be based on reasons which are material. In S. Narayanappa vs. CIT (1967) 63 ITR 219 (SC) : TC 51R.651 it was noted by the apex Court that expression "reasons to believe" in s. 147 does not mean purely a subjective satisfaction on the part of the AO, belief must be held in good faith; it....
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....above. The amendment provisions are contextually different and the cumulative conditions spelt out in cl. (a) or (b) of s. 147 prior to its amendment, are not present in the amended provision. The only condition for action is that AO should have reason to believe that income has escaped assessment, which belief can be reached in any manner and is not qualified by a precondition of faith and true disclosure of material fact by an assessee as contemplated in the pre-amended s. 147(a) of the Act and AO can under the amended provisions legitimately reopen the assessment in respect of an income which has escaped assessment. Viewed in that angle power to reopen assessment is much wider under the amended provision and can be exercised even after assessee has disclosed fully and truly all the material facts. To similar view were the conclusions of this Court in Rakesh Aggarwal vs. Asstt. CIT (1997) 142 CTR (Del) 272 : (1997) 225 ITR 496 (Del) : TC S51.4080. It is to be noted at this juncture that twin conditions must be fulfilled if the case is one which is covered by the proviso to s. 147 operative w.e.f. 1st April, 1989." 5.3 The Hon'ble High Court of Gujarat in the case of Praf....
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....es where income has escaped assessment. Clause (a) thereof covers the case where no return is filed though the income had exceeded the maximum amount which is not chargeable to income-tax. In such cases, in order to put it beyond the pale of doubt or controversy, the provision is made that they will be deemed to be cases of escaped assessment so as to warrant the proceedings even beyond the said period of four years, since, in that event, the case would fall in the enabling part of the proviso. Clause (b) deals with cases where no assessment is made and the AO notices that the income is understated or excessive loss, deduction allowance or relief is claimed in the return. These would be cases where the return is accepted without scrutiny and no formal assessment is made. Clause (c) would cover cases where, in the assessment already made, income was underassessed or assessed too low or excessive relief is given or that excessive loss or depreciation allowance or other allowance under the Act has been computed. In the aforesaid deemed cases of escapement of income, the AO can initiate the proceedings on finding or discovering such cases and no debate whether they constitute ....
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....cie justified in initiating the proceedings on such basis. The cases of non-assessment of an item of income chargeable to tax would warrant formation of requisite belief to initiate the proceedings within four years of the end of the relevant assessment year, even where full disclosure were made and yet an income chargeable to tax had escaped from being included in the final assessment order in which taxable income was worked out. In such cases the AO has in fact a duty to exercise his jurisdiction. The AO has not to conclusively come to any finding on the facts which prompted his reason to believe, at the stage of the issuance of notice under s. 148 pursuant to which the assessee is to be heard; and the order if adverse, can be questioned under the provisions of the Act. 8. The cases of underassessment or excessive relief which are deemed cases of escapement of income leave no scope for an argument that they are not the cases of income having escaped assessment. If the AO prima facie finds or discovers that the case falls in any of the clauses of Expln. 2, then those cases will be of deemed cases of income that has escaped assessment and without anything more beyond such ....
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.... case, from the first assessment it appeared to the AO, while making an order in respect of the asst. yr. 1993-94, that the amount of taxable income in the form of capital gains in respect of the transfer of the land which was treated as stock-in-trade on 19th Sept., 1990, in favour of the firm and the tax payable thereon not being ascertained, there was escapement of income. Since the AO at the first assessment in the year 1991-92 never really formed an opinion on the question whether there was a transfer on 19th Sept., 1990, of the land in question to the firm and that the amounts credited to the accounts of the partners who had contributed the lands to the firm, were meant to be the price of the land which was to be actually paid from the collections received by the firm from membership fees as soon as received, as was envisaged admittedly in para. 11 of the partnership deed, there was no question of any change of opinion when on the relevant facts being found the AO, while protectively assessing the petitioner-assessee for the year 1993-94, noted that this was a case for issuance of a notice under s. 148, which came to be issued thereafter. When the amount of taxable income and....
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.... The belief entertained by the AO should not be irrational and arbitrary. To put it differently, it must be reasonable and must be based on reasons which are material. In S. Narayanappa vs. CIT (1967) 63 ITR 219 (SC) : TC 51R.651, it was noted by the apex Court that the expression "reason to believe" in s. 147 does not mean purely a subjective satisfaction on the part of the AO, the belief must be held in good faith; it cannot be merely a pretence. It is open to the Court to examine whether the reasons for the belief have a rational nexus or a relevant bearing to the formation of the belief and are not extraneous or irrelevant for the purpose of the section. To that limited extent, the action of the AO in initiating proceedings under s. 147 can be challenged in a Court of law." It was further observed : "Upto 31st March, 1989, two conditions were required to be fulfilled to confer jurisdiction on the AO to act under s. 147(b). They are : (1) he must have information which comes into his possession subsequent to the making of the original assessment order, and (2) that information must lead to his belief that income chargeable to tax has escaped assessment....
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....sion as is well known, is an authority for the proposition that it decides and not what can logically be deduced therefrom. A point not raised nor argued at the Bar cannot be said to be the ratio of the decision. 18. Another aspect of the matter cannot be also lost sight of. The Board has power to issue circulars under s. 119 of the said Act. It is trite that the circulars which are issued by the CBDT are legally binding on the Revenue [See UCO Bank vs. CIT (1999) 154 CTR (SC) 88 : (1999) 237 ITR 889 (SC)]. Recently in CIT vs. Anjum M.H. Ghaswala & Ors. (2001) 171 CTR (SC) 1 : JT 2001 (9) SC 61, the apex Court following the said decision observed : "It is true that by this press release the Board had interpreted the provisions of the Act in a particular manner. Be that as it may, we would like to make it clear that every clarificatory note or press release issued by the Board does not have the statutory force like the circulars issued by the Board under s. 119 of the Act. It is only those circulars issued by the Board under the provisions of s. 119 of the Act, will have the statutory force and will be binding on every IT authorities. Therefore, the press release r....
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....iew to allay the fears that the omission of the expression "reason to believe" from s. 147 would give arbitrary powers to the AO to reopen past assessment on mere change of opinion. It is, therefore, evident that even according to the CBDT a mere change of opinion cannot form the basis for reopening a completed assessment. 20. The submission of Mr. Jolly to the effect that the said circular cannot be construed in such a manner whereby the jurisdiction of the statutory authority would be taken away is not apposite for the purpose of this case. In Union of India & Ors. (supra), whereupon Mr. Jolly had placed strong reliance, the apex Court was dealing with an administrative instructions whereby no right was conferred upon the respondents to have the house rent amount included in their emoluments for the purpose of computing overtime allowance. The apex Court held that otherwise also the Government's instructions have to be read in conformity with the provisions of the Act. Therein the apex Court was not concerned with the statutory powers of a statutory authority to issue binding circulars. 21. Another aspect of the matter also cannot be lost sight of. A st....
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....ount to giving premium to an authority exercising quasi judicial function to take benefit of its own wrong. For the reasons afore-mentioned we are of the opinion that answer to the question raised before this Bench must be rendered in the affirmation i.e., in favour of the assessee and against the Revenue. No order as to costs." 5.5 The decision of the Hon'ble Delhi High Court in the case of Kelvinator of India Ltd. (supra) has been approved by the Hon'ble Supreme Court in CIT Vs. Kelvinator of India Ltd 320 ITR 561(SC) on 18/01/2010 and held that 'AO has power to reopen, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. The relevant finding of the Hon'ble Supreme Court is reproduced as under: "4. On going through the changes, quoted above, made to s. 147 of the Act, we find that, prior to Direct Tax Laws (Amendment) Act, 1987, reopening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the AO to make a back assessment, but in s. 147 of the Act (w.e.f. 1st April, 1989), th....
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....past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended s. 147 to reintroduce the expression 'has reason to believe' in place of the words 'for reasons to be recorded by him in writing, is of the opinion'. Other provisions of the new s. 147, however, remain the same." 5.6 In the case of PCIT Vs Century Textiles Industries Ltd. (supra) cited by the Ld. counsel of the assessee, during regular scrutiny proceedings, the Assessing Officer raised specific queries with regard to the claim of section 80IC of the Act, which was duly responded by the assessee and the assessment was completed after reducing the claim under section 80IC of the Act. Subsequently, the Assessing Officer reopened the assessment on the ground that excess deduction was allowed to the assessee due to the reason that deduction was claimed on receipt/income, which were not derived from the business of the undertaking. The Hon'ble Bombay High Court in the case in their decision dated 03/04/2018 held that where the Assessing Officer has consciously made inquiries on an issue in regular assessment proceeding, he cannot reopen the assessment on the same issue. ....
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....e, did not arise. As against the above in this case the Assessing Officer consciously considered the claim for deduction under Section 80IC of the Act as is admittedly evident from the issues raised during the regular assessment proceedings. This by itself would be evidence of the fact that the Assessing Officer had occasion to apply his mind to the claim for deduction under Section 80IC of the Act during the regular assessment proceedings and had taken a view on the claim of deduction under Section 80IC of the Act. 12. Moreover, we find that the reasons." 5.7 The SLP filed against the above decision of the Hon'ble High Court has been dismissed by the Hon'ble Supreme Court in their order dated October 2018, which is reported in (2018) 99 taxmann.com 206(SC). 5.8 In the case of Jalaram Enterprises Private Limited (supra), cited by the learned Counsel of the assessee, the assessment for assessment year 2013-14 was completed under section 143(3) on 09/03/2016. This assessment was reopened on 27/03/2018 (within period of four years from the end of the relevant assessment year). The reasons recorded, the Assessing Officer mentioned that as per the information received fro....
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....urces" and thus book profit and salary to the partner had been allowed in excess in the regular assessment. In background of these facts, the Hon'ble High Court in the order dated 15/04/2011 held that entire facts in relation to FDR bank interest were available with the Assessing Officer and who framed his opinion that interest from FDR was business income only and therefore reopening amounts to "change of opinion". The relevant finding of the Hon'ble High Court is reproduced as under: "9. Insofar as the exclusion of interest income while computing book profit is concerned, it is apparent that during the course of assessment proceedings, the entire facts regarding FDR bank interest were furnished to the then AO who appears to have been of the opinion that the entire investment and income pertains to business only and accordingly net income was worked out and salary paid to partners under s. 40(b) of the Act came to be computed. Considering the material placed before the AO, it would appear that the AO must have applied his mind in taking into consideration the interest income while computing book profit under s. 40(b) of the: Act. Moreover, in the light of the decision of ....
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....under Section 142(1) of the Act, before the assessment was originally framed on 26-12-2007, it becomes clear that in relation to the very issue which forms the basis of reasons recorded, a specific query was raised by the assessing officer and the Petitioner had replied on 24-12-2007 in the following words: (1) Accounting system adopted: We are following completion method for transferring work-inprogress to land and building account since we directly purchase materials and hire labours for development and construction activity. We book the members on their interest basis irrespective of stage of work. We allot shares to them to part with ownership of land and building. We are not preparing any profit and loss account for our company in the period of construction as all the expenditure are debited to work-in-progress and transfer at the completion of work to land and building account on one side and members contribution to reserve and surplus account under building fund. We are enclosing herewith details of dwelling and shop units proposed floor-wise along with total size of floor and constructed areas for your kind perusal. Annex. 1. 11. Thus, it is appar....
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....ned if the Assessing Officer has "reason to believe" that income chargeable to tax has escaped assessment; but if he wants to do so after a period of four years from the end of the assessment year, he can do so only if the assessee has fallen short of his duty to disclose fully and truly all material facts necessary for his assessment. It does not follow that he cannot reopen the assessment even within the period of four years as aforesaid if he has reason to believe that the assessee has failed to make the requisite disclosure. All that the section says is that in a case where the assessment is sought to be reopened after the period of four years, the only reason available to the Assessing Officer is the non-disclosure of material facts on the part of the assessee. The Act places a general duty on every assessee to furnish full and true particulars along with the return of income or in the course of the assessment proceedings so that the Assessing Officer is enabled to compute the correct amount of income on which the assessee shall pay tax. The position has been further clarified by the proviso itself in a case where assessment under sub-section (3) of section 144 of the Act or t....
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....various provisions of the Act. But Explanation 1 to the section confines the duty to the disclosure of all primary and material facts necessary for the assessment, fully and truly. As to what are material or primary facts would depend upon the facts and circumstances of each case and no universal formula may be attempted. The legal or factual inferences from those primary or material facts are for the Assessing Officer to draw in order to complete the assessment and it is not for the assessee to advise him, for obvious reasons. The Explanation, however, cautions the assessee that he cannot remain smug with the belief that since the assessee has produced the books of account before the Assessing Officer from which material or evidence could have been with due diligence gathered by him,he has discharged his duty. It is for him to point out the relevant entries which are material, without leaving that exercise to the Assessing Officer. The caveat, however, is that such production of books of account may, in the light of the facts and circumstances, amount to full and true disclosure; this is clear from the use of the expression "not necessarily" in the Explanation. T....
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.... light of subsequent coming into light of facts or law, reopen the assessment. In the light of the aforesaid discussion, since, there was no new tangible material available with the Assessing Officer while resorting to section 147/148 of the Act, more specifically, while framing original assessment u/s 143(3) of the Act, there was full disclosure of material facts by the assessee and on the basis of those facts, assessment was completed u/s 143(3) of the Act." 5.13 In the case of Replika Press Private Limited & ANR (supra), the assessment year involved is 2006-07 and the reassessment proceedings were initiated within four years from the end of the relevant assessment year. The said assessee was engaged in the business of printing of text books and in the original assessment deduction under section 10B of the Act was allowed to the assessee. Subsequently, in the reasons to believe recorded, the Assessing Officer noted that according to CBDT circular No. 347 dated 07/07/1982, the assessee was not a manufacturer for the purpose of deduction under section 10B of the Act. The Hon'ble High Court in the order dated 05/08/2013 observed that "as per the reasons to believe, the AO had for....
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.... specifically enquired and gone into by the Revenue. The Hon'ble High Court in the order dated 14/02/2014 held that the issue already enquired in original assessment proceedings on the basis of the information available, it amounts to "change of opinion". The relevant finding of the Hon'ble High Court is reproduced as under: "It is evident from the above discussion that the reassessment proceedings were initiated by the impugned notice which expressly and plainly states that "reasons to believe" are based upon the materials contained in an investigation report of 13.3.2006. The notice itself does not spell out that the report was not on the record when the original assessment was completed on 24.12.2007 nor did the revenue even suggest so in the counter affidavit filed in the proceedings. It is only in a subsequently filed additional affidavit that the position is sought to be clarified. Clearly this Court refrains from making such an enquiry, at a time when the AO has, in the first instance, failed to spell out clearly in the section 148 notice itself that such report was not on record. In other words "the reasons to believe" do not state that even in one sentenc....
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....TR 536 (Del.), was identical to the question sought to be projected by the Revenue in the appeal. 5.16 In the case of Madhukar Khosla Vs ACIT (supra), the Hon'ble Delhi High Court held that in absence of trigger in the form of new material, the reassessment cannot be valid as the Assessing Officer did not possess jurisdiction to reopen the assessment. The Hon'ble High Court observed that whether the reopening amounts or review the change of the opinion is next stage. The relevant finding of the Hon'ble High Court is reproduced as under: "9. In this case, the reasons provided under Section 148 are that in "absence of the source of the addition with documentary evidence on records, the same is required to be brought on tax net as per provisions of section 68 of the Income tax Act, 1961 as the assessee had offered no explanation about the nature and source of the said additions..." and thus, must be treated as income which escaped assessment. No details are provided as to what such information is which excited the AO's notice and attention. The reasons must indicate specifically what such objective and new material facts are, on the basis of which a reopening is i....
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....acts which led the AO to believe that full disclosure had not been made. The impugned notice, the AO's order rejecting the objections, and the arguments of the Revenue nowhere indicate how the AO was impelled to seek re-opening of the assessee's case, as distinguished from the several other completed assessments." 5.17 In the case of Turner Broadcasting System Asia-Pacific Inc. (supra), to assessment years i.e. assessment year 2007-08 and assessment year 2008-09 are involved. In both assessment years assessments are completed under section 143(3) of the Act and notices under section 148 of the Act were issued within four years from the end of the relevant assessment year. The Hon'ble High Court in the order dated 08/10/2015 held that on perusal of the regular assessment orders, it was clear that on opinion was formed by the Assessing Officer on the issue of taxation of advertisement and distribution revenue, and the reasons recorded for reassessment, the Assessing Officer merely intended to revisit the concluded assessment and it was a clear case of change of opinion, which was not permissible under law. The relevant finding of the Hon'ble High Court is reproduced as under: ....
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.... . . ." (p. 477) 18. Following the settled trend of judicial opinion and the law laid down by their Lordships of the Supreme Court time and again, different High Courts of the country have taken the view that if an expenditure or a deduction was wrongly allowed while computing the taxable income of the assessee, the same could not be brought to tax by reopening the assessment merely on account of subseouentlv the assessing officer forming an opinion that earlier he had erred in allowing the expenditure or the deduction - Siesta Steel Construction (P.) Ltd. v. K.K. Shikare [1985] 154 ITR 547 (Bom.), Satpal Automobile Co. v. ITO [1983] 141 ITR 450 (All.), Gopal Films v. ITO [1983] 139 ITR 566 (Kar.), CWT v. Manilal C. Desai [1973] 91 ITR 135 (MP). (underlining supplied) 20. On applying, the above principles to the facts of the present case and on perusal of the reasons we find that no fresh information or material has been referred to in the reasons recorded for seeking to reopen the assessment. The material that is referred to is the very same material that was already before the Assessing Officer at the time of framing of the assessment under Section 143 ....
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.... We have already discussed the decisions cited by the learned counsel of the assessee wherein the Hon'ble Court has held change of opinion i.e. Century Textile Industries Ltd. (supra), Tulsi Developers (supra), HK Buildcon Ltd. (supra), Nitynand Infrastructure Ltd (supra), Replika Press Private Limited (supra), Rasalika Trading and Investment Company Private Limited (supra). In all these cases, queries were raised on particular issue and same was responded by the assessee in the original assessment proceeding and the assessment was reopened within four years from the end of the relevant assessment year. 5.21 The Hon'ble Delhi High Court in the case of Usha International Ltd. (supra), in their decision dated 24/09/2012 by a majority view, held that when on a particular issue the Assessing Officer has raised a query and the assessee has responded in regular assessment proceeding, then in such circumstances even if no addition has made in the assessment order, it shall be treated as a opinion has been framed by the Assessing Officer and subsequently, reopening on the same issue would amount to 'change of opinion'. The Hon'ble High Court in para 39 of the decision has further held t....