TaxTMI 
TaxTMI 
2021 (4) TMI 56
X X X X Extracts X X X X
X X X X Extracts X X X X
....e issued u/s 148 is defective, which is not a curable defect and thus all consequential proceedings are bad in law. 5. The order of reassessment is bad in law and void ab initio for want of requisite jurisdiction especially the mandatory requirement. to assume jurisdiction u/s 148 of the Act did not exist and have not been complied with and consequently the order of reassessment requires to be cancelled in entirety. 6. The order of reassessment is bad in law and void ab inibo since the learned Assessing Officer failed to take mandatory sanction of the competent authority and if obtained, was not in accordance with law. 7. The learned CIT(A) was not justified in appreciating that the reasons recorded do not amount to reason to believe nor reason to suspect, on the facts and circumstances of the case. 8. The learned CIT(A) was not justified in appreciating that the reasons recorded amounted to a mere change of opinion, since the AO has made enquiries in the order passed under section 143(3) on 18.03.2013, which is impermissible in law, on the facts and circumstances of the case. 9. The learned CIT(A) was not justified in appreciating that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ubstitute any or all of the above grounds of appeal as may be necessary at the time of hearing. 19. For these and other grounds that may be urged at the time of hearing of appeal, the appellant prays that the appeal may be allowed for the advancement of substantial cause of justice and equity. 2. Brief facts of the case are as under: The assessee is a co-operative bank. It filed its return of income for year under consideration on 30/09/2010 declaring total income of Rs,5,74,66,600/-. The assessment was concluded under section 143(3) of the Act, on 18/03/2013 filed determined taxable income at Rs. 6,67,03,006/-. 3. Subsequently the assessment was reopened under section 147 of the act on the plea that there is escapement of income inasmuch as the claim for standard assets for a sum of Rs. 50 Lacs was wrongly not considered for disallowance by the assessing officer during the original assessment proceedings, and on 14/03/2016, notice under section 148 of the act was issued to assessee in response to which assessee filed letter dated for April 2016 requesting that the return of income filed on 30/09/2010 be treated as return filed in response to notice under section ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....otally really bad. Therefore, the Assessing Officer has, after making elaborate discussion and taking into settled law position on the issue, correctly disallowed the above claim for the provision made and in my considered opinion there is no interference needed on the issue. Hence, the ground raised on the issue of reopening assessment and disallowance of the claim for doubtful Standard Asset, is dismissed. 3.7 Secondly, apart from the above, the ratio of Bharat Overseas Bank Ltd vs Commissioner of Income Tax (2013) 152 TTJ 546/82 DTR 373 (Chennai) (Trib), the ratio laid down by ITAT, Ahmedabad (ITA No. 1252/Ahd/2012) dtd 26.07.2013 in the case of Bharuch Dist. Central Co-operative Bank Ltd vs ITO, Ward-1, Bharuch also supports the view taken by the Assessing Officer. 8. On merits the Ld.CIT(A) confirmed the additions made by Ld.AO. 9. Aggrieved by the order of Ld.CIT(A) assessee is in appeal before us now. 10. At the outset the Ld.AR submitted that Ground No. 3-10 are raised challenging the validity of reopening of assessment beyond the period of 4 years. 11. The Ld.AR submitted that Ld.AO initiated the proceedings under section 148 of the act, in respect of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....)102 ITR 287 15. We have perused submissions advanced by both sides in light of records placed before us. Primarily be observed that the Ld.CIT(A) has recorded that the basis of reopening is certainly the source of information that is already available on record. The Ld.CIT(A) further records that in the original assessment proceedings due to oversight and inadvertence or a mistake committed by the ITO, the incumbent assessing officer has jurisdiction to reopen the assessment. 16. This itself makes it clear that there was no fresh materials available on record for initiating the reassessment proceedings. The reopening of assessment beyond a period of 4 years have been proceeded with by the Ld.AO based on the material is already available on record. 17. Before us the Ld.Sr.DR placed reliance on to decision by Hon'ble Supreme Court in case of Phool Chand Bajrang Lal vs ITO reported in (1993) 69 Taxmann.com 627 in support of the initiation of reassessment proceedings in the present facts. In our view this decision does not help the argument of revenue as Hon'ble Supreme Court categorically observed that; Acquiring fresh information, specific in nature and reliable....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o Direct Tax Laws (Amendment) Act, 1987, section 147 reads as under: "147. Income escaping assessment.- If- (a) the Income-tax Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Income-tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that 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 or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereafter in sections 148 to 153 referred to as the relevant assessment year)." [Emphasis supplied] 3.1 After enactment of Direct Tax Laws (Amendment) Act, 1987, i.e., prior to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he basis of "mere change of opinion", which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to reassess. But reassessment has to be based on fulfilment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1-4-1989, Assessing Officer 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. Our view gets support from the changes made to section 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, Parliament not only deleted the words "reason to believe" but also inserted the word "opinion" in section 147 of the Act. However, on receipt of representations from the Companies against omission of....