TaxTMI 
TaxTMI 
TaxTMI 
2021 (8) TMI 1015
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....ndian Business of Cairn Energy India Private Limited and thus, competent to file the present writ petition on behalf of its predecessor. 3. The petitioner company had filed its return of income for the Assessment Year 2004-05 under Section 139(1) of the Act on 28.10.2004, declaring a total income of Rs. 49,16,89,883/- as per the normal provisions and taxable book profit of Rs. 1,90,55,64,209/- under Section 115JB of the Act. The return of income was processed under Section 143(1) of the Act on 24.02.2005, accepting the returned income. The case was selected for scrutiny by issuance of notice dated 20.04.2005 under Section 143(2) of the Act and during the course of such proceedings, the return of income was thoroughly examined on all aspects to determine the total income for the Assessment Year 2004-05 in question. The Assessing Officer passed the final assessment order under Section 143(3) of the Act in proceedings dated 28.12.2006. The total income of the petitioner under the normal provisions of the Act was determined at Rs. 109,59,99,910/- and the book profit of Rs. 197,37,88,456/- was determined under the provisions of Section 115JB of the Act. The case was referred to Transfe....
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.... of original assessment proceedings are taken into consideration for the purpose of reopening of assessment and perusal of the reasons furnished, would reveal that there is no fresh materials on record for the purpose of continuance of the reopening proceedings. Thus, the exercise made by the respondent for reopening under Section 147 of the Act lacks jurisdiction. 8. The learned Senior counsel for the petitioner relied on several judgments to establish that the cases, where change of opinion is a ground for reopening, the Courts have set aside the initiation of 147 / 148 proceedings. When the case on hand is also a case, where there is no tangible material on record for reopening of assessment, the order impugned is liable to be set aside. 9. As far as the judgments relied on by the petitioner are not in dispute as the principles in this regard are settled. With reference to Section 147 of the Income Tax Act, if the assessing Officer has 'reason to believe' that the income chargeable to tax escaped assessment, then he is empowered to institute reopening proceedings. The 'reason to believe' must have live link with the reasons furnished for the purpose of reopenin....
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....could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. Therefore, the mere production of books of accounts or other evidences by the assessee may not be sufficient to set aside the reopening proceedings. If the Assessing Officer has 'reason to believe' that some issues, which all are not adjudicated and from and out of such omission or commission income chargeable to tax escaped assessment, then he is empowered to reopen the assessment and proceed with the same by affording opportunity to the assessee. This being the scope of Section 147, there is no reason to arrive a conclusion that the reopening proceedings are initiated on change of opinion. 13. Considering the arguments as advanced by the respective learned Senior counsel for the petitioner and the learned Senior Standing counsel for the respondent, the question arises, whether the initiation of reopening of assessment in the present case is change of opinion or the Assessing Officer has 'reason to believe'. 14. It is not in dispute that the case on hand is beyond four years, but within six years. Further, i....
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....he assessee for the purpose of continuing the reopening proceedings and for passing final reassessment orders. This exactly is the reason, why objective satisfaction is sufficient in respect of the order passed, disposing of the objections. However, while passing the final assessment / reassessment order, subjective satisfaction of the competent authority is mandatory. Thus, the order, disposing of the objections or reopening of assessment at no circumstances be compared with the final assessment /reassessment order, which is to be passed after complete adjudication of the facts and the circumstances raised by the parties. 17. In respect of the writ petition on hand, notice under Section 148 was issued on 30.03.2011. The reasons were furnished to the assessee, objections received and the said objections were disposed of. The reasons stated in proceedings dated 18.02.2013 states as follows: "In the instant case, the return of income was filed on 28.10.2004 declaring a total income of Rs. 49,16,89,883 as per the normal provisions of income tax and taxable book profit of Rs. 190,55,64,209 as per section 115 JB. The case was selected for scrutiny and assessment was completed u/s 14....
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....icated by the Assessing authority. Thus, the Assessing Officer has 'reason to believe' for reopening of assessment in order to ascertain the TDS is to be on higher rate or on lower rate. In view of the fact that the said issue was not considered by the Original Assessing authority and subsequently, noticed by the competent authority, the reopening of assessment is made in accordance with the requirements as contemplated under Section 147 of the Income Tax Act. Section 147 Explanation 2(c) enumerates where an assessment has been made, but - (i) income chargeable to tax has been underassessed; or (ii) such income has been assessed at too low a rate; or (iii) such income has been made the subject of excessive relief under this Act; or (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed. Therefore, even in cases, where the new informations, materials are gathered from and out of the account books and other evidences produced by the assessee during the course of the original assessment, then also, reopening of assessment is possible, if such cases are falling under any of the clauses as contemplated under Section 147 of the Act. ....