TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 518
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....petition was filed, challenging the order passed by the 1st respondent, dated 29.03.2018, under Section 148 of the Income Tax Act, 1961 ("the Act" for brevity), for the Assessment Year 2013-2014. 3.The assessment for the year under consideration was completed by order, dated 31.12.2016, under Section 143(3) read with Section 92CA of the Act. Notice under Section 148 was issued on 29.03.2018, proposing to reopen the assessment. The assessee sought for the reasons for reopening, by letter dated 27.04.2018. The reasons were not furnished. However, notice under Section 143(2) of the Act, dated 21.08.2018, was issued. Therefore, the assessee sent another letter, dated 27.08.2018, requesting for furnishing the reasons for reopening. Ultimately, ....
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.... Officer to reopen the assessment on the basis of mere "change of opinion", which cannot be per se reason to reopen. Further, it was pointed out that the conceptual difference between the power to review and power to re-assess has to be kept in mind; the Assessing Officer has no power to review, he has power to re-assess, but reassessment is to be based on fulfillment of certain pre-conditions and if the concept of "change of opinion" is removed, then, in the garb of reopening the assessment, review would take place and one must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer. In Commissioner of Income Tax v. Techspan India Pvt. Ltd. reported in ITO (2018) (302 CTR 74), it was he....
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....ion under Section 154 of the Act for rectification of the mistake apparent from the record in the Assessment Order and this issue, which was pointed out by the assessee, is one of the reasons for reopening the assessment. Thus, no reopening could have been done on the said issue, where, the Assessing Officer, at the time of completing the assessment under Section 143(3) of the Act, had made disallowances. 10.With regard to the 2nd issue, namely, Mark-to-Market loss on restatement of outstanding forward contracts to be disallowed in computing the income under the head profits and gains from business or profession, the assessee stated that, on this very issue, the Assessing Officer issued notice under Section 142(1), dated 11.08.2016, and di....
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.... of the same was filed on 16.09.2016. Further, on a specific request made by the respondent, the assessee provided the ledger account in a Compact Disk. Therefore, the assessee contended that the said issue was duly taken into consideration at the time of passing the order under Section 143(3) of the Act. 12.On the 4th issue regarding computation of Long Term Capital Loss claimed in the return of income for carry-forward for future set-off, the assessee stated that, notice dated 11.08.2016 was issued under Section 142(1) and specific information was called for with respect to the documents of Long Term Capital Loss. The assessee has furnished the computation of Long Term Capital Loss by their letter dated 09.09.2016 and in addition thereto....
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....hile disposing of the objections by order dated 16.10.2018, has accepted the fact that the grounds on which the assessment was reopened were verified by his predecessor, while completing the assessment under Section 143(3) of the Act. If such is the understanding of the Assessing Officer, then we have no hesitation to hold that the reopening is a clear case of change of opinion. 15.The assessee, in their objections, had also referred to the Circular issued by the Central Board of Direct Taxes, vide Circular No.549 dated 31.10.1989, wherein, it was clarified that a mere change of opinion cannot constitute a reason to believe under Section 147 of the Act so as to justify the reopening of assessment. 16.Thus, in the absence of new facts comi....
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....ing proceedings. The Assessing Officer did not furnish the reasons nor responded to the said letter, but proceeded to issue the notice under Section 143(2) dated 21.08.2018. Therefore, the assessee submitted another letter dated 27.08.2018, requesting for furnishing the reasons for reopening. It is only thereafter, the reasons for reopening were furnished vide letter dated 30.08.2018. It is not clear as to why there was such a delay in furnishing the reasons. It may be true that no time limit has been prescribed for furnishing the reasons, but the Hon'ble Supreme Court, in the case of GKN Driveshafts (India) Limited v. Income-Tax Officer reported in (2003) 259 ITR 19 (SC), has held that the reasons shall be furnished within a reasonable....