2022 (12) TMI 1321

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....ew of the order dated 10/01/2022 passed by the Hon'ble Supreme Court in the Suo Motu proceedings in the case of M.A.No. 21/2022 in M.A.No. 665/2021 in SMW(C) No.3 of 2020 wherein it was held that, in cases where the limitation would have expired during the period between 15/03/2020 and 28/02/2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01/03/2022, and in the event of actual balance period of limitation remaining with effect from 01/03/2022 is greater than 90 days, that longer period shall apply. Even such extended period of limitation expires by the end of May, 2022. 3. The cross objections filed on 18/07/2022 are clearly barred by limitation. Assessee made no attempt to comply with the objection taken by the Registry on the aspect of delay and no explanation is forthcoming. We, therefore, find no option but to dismiss the cross objections as barred by limitation, and proceed to dispose of the appeal. 4. Brief facts of the case are that the assessee is in the business of leasing of IT parks. For the assessment year 2013-14 they have filed their return of income on 30/9/2013 declaring a ....

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....t in as much as there was no opinion that was formed by the learned Assessing Officer on the aspect of interest free loans at the time of the original assessment proceedings, no question of change of opinion arises and consequently the findings returned by the learned CIT(A) has to be reversed. 9. Per contra, the submissions on behalf of the assessee are twofold. Firstly it is contended by the Ld. AR that under proviso to section 147 of the Act as it stood at relevant time, in case of assessment under section 143(3) of the Act, no action shall be taken under section 147 after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a written under section 139 to disclose fully and truly all material facts necessary for the assessment for the assessment year. In this case the notice under section 148 of the Act was issued on 28/3/2018 which is beyond the period of four years from the expiry of the relevant assessment year. Further according to him there was an enquiry by the learned Assessing Officer as to the interest free loa....

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....ed Assessing Officer to take action under section 147 of the Act inasmuch as the information received by the learned Assessing Officer to re-open the concluded proceedings must be based on new tangible material in view of the language employed in such section. Learned CIT(A) accordingly concluded that the re-opening of assessment in this matter under section 147 of the Act is not justified as it is only change of opinion. To reach this conclusion, learned CIT(A) placed reliance on the decisions of various Hon'ble High Courts and also the Hon'ble Apex Court in ITO v. TechSpanIndia (P.) Ltd. [2018] 92 taxmann.com 361 (SC). 13. On this aspect, it is relevant to refer to the decision of the Hon'ble Apex Court in the case of CIT Vs. Kelvinator of India Ltd. [2010] 187 Taxman 312 (SC). In this case, Hon'ble Apex Court while dealing with the amendment brought into force with effect from 01/04/1989 to section 147 of the Act held that,- "4. On going through the changes, quoted above, made to section 147 of the Act, we find that, prior to Direct Tax Laws (Amendment) Act, 1987 , re- opening could be done under above two conditions and fulfilment of the said conditions ....

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....;opinion' of the Assessing Officer. It was pointed out that the meaning of the expression, 'reason to believe' had been explained in a number of court rulings in the past and was well settled and its omission from section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989 , has again amended section 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 section 147, however, remain the same." [Emphasis supplied] 5. For the aforestated reasons, we see no merit in these civil appeals filed by the Department, hence, dismissed with no order as to costs." 14. It is also relevant for the sake of completeness to refer to the observations of the Hon'ble Apex Court in TechSpanIndia (P.) Ltd. (supra), which read thus,- "The language of Section 147 makes it clear that the assessing officer certainly has the power to re-assess any income which escaped assessment for any assessment year subject to the provisions of Sections 1....

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....... Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open. 6. 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 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 garb of re-opening the assessment, review would take place. 7. 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 1st April, 1989, Assessing Officer has power to re-open, 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.' 12. Before interfering with the proposed re-opening of the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment ea....