TaxTMI 
TaxTMI 
2008 (7) TMI 238
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....nst the notice dated 27^th December, 2006 issued under Section 148 of the Income-tax Act for reopening of the assessment for the assessment year 2003-04. The Petitioner raised an objection to the notice. That objection has been rejected by order dated 14^th May, 2008. Thus, by this petition the Petitioner challenges the notice as also the order dated 14^th May, 2008 rejecting the objection. 3. According to averments in the petition, in the assessment year 2003-04 the Petitioner received dividends of Rs.69,85,550/- from other domestic companies and Rs.14,094/- from Mutual Funds. The Petitioner distributed to its shareholders dividends of Rs.31,00,000/- on 6^th October, 2003, falling in the assessment year 2004-05, before the due date for ....
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....wed. In any case, according to the learned Counsel, the power under Section 147 cannot be used to review the order made by the authorities. 6. The learned counsel for the Petitioner relies on two judgments, one of the Full Bench of the Delhi High Court in the case of the Commissioner of Income-tax v. Kelvinator of India Ltd., (2002) 256 ITR 1 and another of Division Bench of this Court in the case of German Remedies Ltd. v. Deputy Commissioner of Income-tax and Ors, (2006) 285 ITR 26 (Bom). 7. The learned counsel for the Respondents, on the other hand, relies on Explanation 2 to Section 147 of the Income-tax Act. 8. Perusal of the record shows that the petitioner had made full disclosure necessary for claiming deduction under Secti....
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....ed thus (page 19): "When a regular order of assessment is passed in terms of the said sub-section (3) of Section 143 a presumption can be raised that such an order has been passed on application of mind. It is well known that a presumption can also be raised to the effect that in terms of clause (e) of Section 114 of the Indian Evidence Act judicial and official acts have been regularly performed. If it be held that an order which has been passed purportedly without application of mind would itself confer jurisdiction upon the Assessing Officer to reopen the proceeding without anything further, the same would amount to giving a premium to an authority exercising quasi-judicial function to take benefit of its own wrong." ....
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....cribed by the provisions of section 154 of the Act. The said power can be exercised when the mistake is apparent. Even a mistake cannot be rectified where it may be a mere possible view or where the issues are debatable. Even the Income-tax Appellate Tribunal has limited jurisdiction under Section 254(2) of the Act. Thus, when the Assessing Officer or Tribunal has considered the matter in detail and the view taken is a possible view the order cannot be changed by way of exercising the jurisdiction of rectification of mistake. It is a well settled principle of law that what cannot be done directly cannot be done indirectly. If the Income-tax Officer does not possess the power of review, he cannot be permitted to achieve the said object by....
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....ssessment" means entertaining a reasonable belief that a particular income went unnoticed by the Assessing officer and hence escaped assessment. Even after the introduction of the concept of deemed escapement of income by Explanation 2 to section 147 of the Act with effect from April 1, 1989, the belief that the income has escaped assessment entertained by the Assessing Officer must be a prudent belief and not mere change of opinion. Thus, an assessment order passed after detailed discussion cannot be reopened within a period of four years from the end of the relevant assessment year, unless the Assessing Officer has reason to believe that due to some inherent defect in the assessment, the income chargeable to tax has been under assessed or....