TaxTMI 
TaxTMI 
2022 (3) TMI 727
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....he appellant has filed the above said writ petition challenging the communication dated 29.10.2021 issued by the respondent rejecting the objections made by the appellant to the re-opening of the assessment proceedings for the assessment year 2004-2005. 3. The appellant company is engaged in the business of development and export of computer software. They have filed their return of income for the assessment year 2004-05 on 30.10.2004, declaring an income of Rs. 7,71,323/-. The return so filed by the appellant was processed and an intimation under Section 143 (1) was issued on 30.03.2005. Subsequently, a notice dated 15.12.2005 was issued by the respondent under Section 148 of the Income Tax Act (in short, the Act) requiring the appellan....
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....has stated that the appellant has not deducted Tax Deducted at Source (TDS) under Section 195 of the Act on the amount paid to the foreign companies towards multimedia charges which warranted reopening of the assessment. To this letter dated 21.12.2011, the appellant sent their objections in the form of a letter dated 26.12.2011 and requested the respondent to drop the reopen proceedings. Thereafter, the respondent passed the order dated 28.12.2011 under Section 143 (3) read with Section 147 of the Act raising an additional demand of Rs. 33,52,80,175/- towards tax. 6. Aggrieved by the order dated 28.12.2011, the appellant filed WP No. 2520 of 2012 before this Court. This Court on appreciation of the rival submissions, held that the objec....
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....d that the respondent has no jurisdiction to reopen the assessment beyond four years and hence the entire re-assessment proceedings are barred by limitation. The assessment proceedings were completed on 08.12.2006 and after four years, the notice dated 21.03.2011 was issued to reopen the concluded assessment. According to the learned counsel for the appellant, it is well settled that on a mere change of opinion, reassessment proceedings should not be resorted to. In the present case, the respondent, without any fresh material, has proceeded with the reassessment proceedings only upon a mere change of opinion which is legally impermissible. Further, the re-assessment proceedings were initiated on the sole ground that the appellant has not de....
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....7 would give arbitrary powers to the AO to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open. One must also keep in mind the conceptual difference between power to review and power to re-assess. The AO has no power to review, he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition and if the concept of "change of opinion" is removed , as contended on behalf of the Department, then, in the garbof 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 AO. Hence, after 01.04.1989, the AO has power to re-opn, provided there is "tangible material"to ....
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....the prayer sought for in the writ petition itself was premature and that was rightly taken note of by the learned Judge, which does not call for any interference. 11. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 12. On perusal of the order dated 29.10.2021, which was impugned in the writ petition No. 28305 of 2021, it is seen that pursuant to the order dated 30.07.2021 passed by this Court in WP No. 2520 of 2012 filed by the appellant herein, the objections raised by the appellant in its communication dated 26.12.2011 was taken up for consideration. After examining the objections so raised by the appellant, the respondent has concluded that there are tangible material evidence ....