TaxTMI 
TaxTMI 
2025 (5) TMI 2056
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....) of the Income Tax Act, 1961 (for short "the Act") dated 21.03.2022, order dated 07.04.2022 passed under section 148A(d) of the Act and notice under section 148 of the Act of even date. 5. Brief facts of the case are that the petitioner is a limited company and is engaged in the business of manufacturing and trading of fruit based drink and other products. 6. The petitioner filed revised return of income for Assessment Year 2018-2019 on 29.03.2019 offering total income at Rs. 3,79,21,580/-. 7. The return of income was taken up for scrutiny for examining deductions claimed by the petitioner among other issues. Notice dated 22.09.2019 under section 143(2) of the Act read with Rule 12E of Income Tax Rules, 1962 and notice dated 21.12.2020 under section 142(1) of the Act was issued to the petitioner specifically inquiring into the deduction claimed under section 80IC of the Act. 8. The petitioner submitted all the details asked for vide letter dated 19.01.2021. Eventually the assessment order came to be passed under section 143(3) of the Act on 24.03.2021 assessing income of the petitioner at Rs. 4,48,43,799/-. 9. Thereafter notice came to be issued upon the petitioner ....
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.... from the profit of the current year while computing the deduction. It was t therefore, submitted that for both the issues, there is no income which has escaped assessment and the impugned order under section 148A(d) of the Act and consequential notice under section 148 of the Act was issued merely on change of opinion which is not permissible so far as issue of deduction under section 80IC of the Act is concerned. 18. In support of his submission with regard to change of opinion which is not permissible, reliance was placed on the following decisions: 1) Hitech Outsourcing Services v. Commissioner of Income Tax reported in (2018) 409 ITR 609. 2) Heubach Colour (P) Ltd. v. Assistant Commissioner of Income-tax reported in (2024) 167 taxmann.com 126 (Gujarat). 3) Deepakbhai Ramjibhai Patel v. Income Tax officer reported in (2014) 366 ITR 134. 4) Cliantha Research Ltd. v. Deputy Commissioner of Income-tax, Ahmedabad Circle-I reported in (2013) 35 taxmann.com 61 (Gujarat). 5) Shahlon Silk Industries (P) Ltd. v. Assistant Commissioner of Income tax reported in (2023) 146 taxmann.com 194 (Gujarat). 6) Kiritbhai Parshottambhai Patel....
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.... therefore, submitted that the impugned notice under section 148A(b) and order passed under section 148A(d) of the Act as well as notice under section 148 of the Act may be quashed and set aside. 23. On the other hand, learned advocate Ms. Maithili D. Mehta for the respondent submitted that mere providing information by the petitioner in response to the query raised by the respondent Assessing Officer is not enough. 24. It was further pointed out that the petitioner has failed to deduct TDS on the fees for balance amount of various fees amounting to Rs. 16.20 crore at the rate of 30% which amounts to Rs. 4,86,04,504/- which is required to be disallowed under section 40(a)(ia) of the Act. 25. It was further submitted that even for deduction claimed under section 80IC of the Act, the petitioner has not reduced the loss of previous year from the income of the current year as per the provisions of sub-section(7) of section 80IC read with sub-section (5) of section 80IA of the Act and even the Form 10CCB filed by the petitioner is erroneous resulting into the escapement of income. It was further submitted that the respondent Assessing Officer has formed a prima facie opinion th....
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.... 153 of the Act. 30. On perusal of the provisions of section 147 of the Act, assessment or reassessment can be undertaken by the Assessing Officer if there is escapement of taxable income and for that purpose, the proviso to section 148 provides that no notice shall be issued if information leading to escapement of income is not available with the Assessing Officer but converse is not true that all information available with the Assessing Officer would lead to issuance of notice for reopening more particularly, when the issue which is already considered during the assessment proceedings and thereafter, assessment order is passed under the provisions of section 143(3) of the Act. Any information subsequent thereto which may be resulting into escapement of income would amount to reviewing the assessment order. 31. The Hon'ble Apex Court in case of Kelvinator of India Ltd (320 ITR 561) has categorically held that reopening is not equivalent to review of the assessment order. 32. The Hon'ble Bombay High Court in case of Hexaware Technologies Limited v. Assistant Commissioner of Income Tax and others reported in (2024) 464 ITR 430 (BOM) has held as under: "43 In Siemen....
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....and a detailed break-up of the said expenses were submitted before the Assessing Officer during the course of assessment proceedings vide a letter dated 6th December 2018. It is settled law that proceedings under section 148 cannot be initiated to review the earlier stand adopted by the Assessing Officer. The Assessing Officer cannot initiate reassessment proceedings to have a relook at the documents that were filed and considered by him in the original assessment proceedings as the power to reassess cannot be exercised to review an assessment. In petitioner's case the Assessing Officer having allowed the amount of software consumables as a revenue expenditure now seeks to treat the same as capital expenditure which is a clear change of opinion. Various judicial precedents have held that reassessment proceedings initiated on the basis of a mere change of opinion are invalid and without jurisdiction. 38. The Apex Court in Kelvinator of India Ltd.(320 ITR 561) emphasised on the difference between a power to review and the power to reassess. The Apex Court held that the Assessing Officer has no power to review but has only the power to reassess. The concept of 'change....
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....ovember 2017, now to disallow the same is based on a clear change of opinion. Reassessment proceedings initiated on the basis of a mere change of opinion is invalid and without jurisdiction. On this ground also the impugned notice issued under Section 148 of the Act has to be quashed and set aside." 33. The Hon'ble Apex Court in case of Indian and Eastern Newspaper Society (supra) while dealing with audit objection had also occasion to consider as to whether material already considered would amount to change of opinion or not. In that context it was held as under: "Now, in the case before us, the Income Tax officer had, when he made the original assessment, considered the provisions of sections 9 and 10. Any different view taken by him afterwards on the application of those provisions would amount to a change of opinion of material already considered by him. The Revenue contends that it is open to him to do so, and on that basis to reopen the assessment under section 147(b). Reliance is placed on Kalyanji Mavji & Co. v. Commissioner of Income Tax(1976) 102 ITR 287(SC), where a Bench of two learned Judges of this Court observed that a case where income had escaped assess....