TaxTMI 
TaxTMI 
2025 (12) TMI 679
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....business of manufacturing of coal tar pitch, carbon black etc. b) For the purpose of transportation of the raw material required for manufacturing the items dealt in by the petitioner, the petitioner had, during the years relevant for the present proceedings, engaged Liquid Gold Carriers Private Limited as a transporter. c) On April 9, 2021 a search and seizure operation was conducted at the residential premises of the Director of Liquid Gold Carriers Private Limited (hereafter 'the transporter'). On the same day, a survey operation was also conducted at the office premises of the said company. d) Based on the information/material gathered during the said survey operation, the Assessing Officer initiated reassessment proceedings in respect of the income of the transporter for the Assessment Year (AY) 2019-20 by issuing a notice dated June 28, 2022 under Section 148 of the 1961 Act. e) In connection with the said reassessment proceedings pertaining to assessment year 2019-20, a notice dated July 16, 2022 was also issued to the petitioner under Section 133(6) of the 1961 Act calling upon the petitioner to provide an explanation as regards t....
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....turing items that it dealt in and that the amounts paid to the transporter were only towards transportation expenses. It was denied that any cash was taken back by the petitioner from the transporter as alleged. m) On August 26, 2022 the Assessing Officer passed an order of assessment under Section 147 of the 1961 Act without making any addition on the ground of cash return of Rs. 4,75,00,000/- that formed the basis for reassessment of the petitioner's income for the assessment year 2018-19. n) The Assessing Officer thereafter initiated reassessment proceedings in respect of the petitioner's income for the assessment year 2019-20, by issuing a notice dated June 26, 2025 under Section 148A(3) of the 1961 Act. Such notice was issued upon overruling the petitioner's objection to the notice to show cause dated March 28, 2025 under section 148A(1) of the 1961 Act. o) Pertinently, the said notice is also based on information gathered from the survey operation conducted on April 9, 2021 at the office premises of the transporter. p) It is this reassessment proceeding which forms the subject matter of challenge in the instant writ petition. SUBMISSIONS....
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....61 Act and the reply thereto submitted by the transporter. It was pointed out that the only addition made in the said assessment order was under Section 40A(3) of the 1961 Act on the ground that the assessee had paid Rs. 6,05,340/- above threshold limit of Rs. 35,000/-. It was submitted by Mr. Khaitan that if the basis for reopening the assessment proceeding against the transporter had been found to be existent and if the amount was not referable to any business conducted then the same would have been assessed under Section 68 of the 1961 Act and tax on the same would have been levied in terms of Section 115BBE of the 1961 Act. However, since the same has evidently not been done after considering the material on record, the genuineness of the transaction between the petitioner and the transporter cannot be doubted. 7. It was thereafter submitted by Mr. Khaitan that on the basis of the information gathered from the self-same search and seizure operation conducted under Section 132 of the 1961 Act at the residential premises of Sri Swapan Roy and the same survey operation at the office premises of the transporter (M/s. Liquid Gold Carriers Private Limited) reassessment proceedings....
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....istant Commissioner of Income-Tax & Ors. [2020] 425 ITR 177 (Bom) in support of his contention that if in a regular assessment proceeding, the Assessing Officer has raised queries, examined the records and accepted the version of the assessee, then on the self-same information reassessment could not be initiated. It was submitted that the said case of Marico Ltd. (supra) was affirmed by the Hon'ble Supreme Court in the case of Assistant Commissioner of Income-Tax vs. Marico Limited (2020) 117 taxmann.com 244 (SC). He relied on a Coordinate Bench judgment of this Court in the case of India Steamship Co. Ltd. vs. Joint Commissioner of Income-Tax & Ors. (2005) 275 ITR 155 (Cal) and Amrit Feeds Ltd. vs. Assistant Commissioner of Income-Tax & Ors. [2012] 344 ITR 187 (Cal) for the proposition that when all the necessary information was there before the Assessing Officer in earlier assessment reopening under Section 147 amounted to change of opinion. It was further submitted by Mr. Khaitan that the assessment order dated August 26, 2022 was passed by the same Assessing Officer who had examined the case of M/s. Liquid Gold Carriers Private Limited on the same day (Annexure - P5 at page....
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.... violation of any of the fundamental rights or there is lack of jurisdiction or any procedural perversity leading to manifest injustice. 17. He next relied on a judgment of the Hon'ble Division Bench of this Court in the case of Shri Shyam Sundar Dhanuka vs. Union of India & Ors. APOT No. 187 of 2023 (Cal); decided on 30.08.2023 for the proposition that correctness of an order under Clause (d) of Section 148 of the 1961 Act can be tested only upon enquiry into disputed questions of fact and in such cases writ jurisdiction cannot be invoked. 18. Another judgment of the Hon'ble Division Bench of this Court in the case of Principal Commissioner of Income Tax, Kolkata-III, Kolkata vs. M/s. West Bengal Fisheries Corporation Limited ITA 71 of 2018 (Cal); decided on 21.05.2024 was cited for the proposition that when the assessment order under Section 143(3) of the 1961 Act passed in respect of assessment year 2019-20 was totally silent on the liability of the assessee, there could not be said to be any case of change of opinion. ANALYSIS & DECISION: 19. Proceedings for reassessment of the transporter's income for the assessment year 2019-20 had been initiated on two is....
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....ad engaged in mutual dealings wherein amounts were credited by the petitioner in the account of the transporter through cheque/RTGS/NEFT against bills raised for alleged transportation of consignment and the said amount was returned in cash to the petitioner on various dates. 26. On the same day a notice under Section 142(1) of the 1961 Act was also issued to the petitioner (pages 127 to 129 of the writ petition) calling upon the petitioner to furnish, inter alia, "trade relationship and details of transactions with M/s Liquid Gold Carriers Pvt. Ltd. managed and controlled by Mr. Swapan Roy, along with the relevant information" as indicated in the said notice. 27. The petitioner furnished a detailed reply to the said notice thereby indicating that the petitioner had during the year under consideration engaged various transporters to transport its raw material from various places to its manufacturing plants and the said transporter had been engaged by the petitioner to transport its raw material like Liquid Coal Tar, CBFS etc. from various steel plants to its manufacturing plants. It was asserted that the amounts paid to the transporter were towards charges for transportation ....
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....Rs. 80,62,000 by the transporter to the petitioner. Such an issue is veritably the same that was raised in the case of the transporter. 33. A careful comparative reading of - (a) the notice under Section 142(1) of the 1961 Act issued to the transporter in the proceeding for reassessment of the transporter's income for the assessment year 2019-20; (b) the notice under Section 133(6) of the 1961 Act issued to the petitioner in the proceeding for reassessment of the transporter's income for the assessment year 2019-20 and (c) the notice under Section 148(1) of the 1961 Act as also the order under Section 148 (3) of the 1961 Act issued to the petitioner for initiating the proceeding for reassessment of the petitioner's income for the assessment year 2019-20 - would reveal that the reassessment proceedings initiated against the transporter as well as the petitioner in respect of their respective incomes for the assessment year 2019-20 involved the same issue. The following comparative chart would reveal the sameness of the transaction between the parties, the material relied on by the revenue authorities and the issue raised in the relevant proceedings:- ....
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....me of M/s. Himadri Speciality Chemicals Limited during F.Y. 2014-15 to F.Y. 2018-19 is Rs. 88,63,00,931/-. From further analysis of same excel sheet of LGCPL/PD/1, it was found that some bills have been adjusted and amount received in cheque has been returned back to Himadri Chemical and Industries Ltd (now known as Himadri Speciality Chemicals Ltd) in cash. ******* ******* ******* 2.7 During the F.Y. 2018-19, out of the said bills raised, it is found that some bogus bills have been adjusted and the amount received in cheque has been returned to M/s. Himadri Chemicals & Industries Limited from M/s. Liquid Gold Carriers Private Limited amounting to Rs. 80,62,000/-. Cash returned to M/s Himadri Chemical and Industries Ltd (now known as Himadri Specialilty Chemicals Ltd.) during various years as per information received is summarized as under: Financial Year wise Cash returned to HIMADRI CHEMICALS & INDUSTRIES LTD from M/s Liquid Gold Carriers Pvt Ltd FY Sum of Amount 2015-16 33407104 2016-17 35509120 2017-18 47500000 2018-19 8062000 Grand Total 12,44,78,224/- 34. It is therefore clear that the assessment order dated August ....
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....icer not be reviewing the decision taken by the Assessing Officer in the transporter's case? The answer has to be in the affirmative. A reassessment on the same point would indeed be some sort of review of the earlier reassessment and that is prohibited. Law on such score was clearly laid down by the Hon'ble Supreme Court in the case of Commissioner of Income Tax, Delhi vs. Kelvinator of India Ltd. (2010) 2 SCC 723 as follows:- "6. We must also keep in mind the conceptual difference between power to review and power to reassess. The assessing officer has no power to review; he has the power to reassess. But reassessment has to be based on fulfilment of certain precondition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place." 37. The matter can be looked at from another angle as well. It has been noted that the same Assessing Officer reassessed the petitioner's income for the assessment year 2018-19 as well as the transporter's income for the assessment year 2019-20 by passing two assessment orders on the same date i.e. August 26, 2022. Interestingly the pe....
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....C OnLine Kar 6489], [Jeans Knit (P) Ltd. v. CIT, 2013 SCC OnLine Kar 10514] the writ petitions preferred by the appellant/assessee herein challenging the issuance of notice under Section 148 of the Income Tax Act, 1961 and the reasons which were recorded by the Assessing Officer for reopening the assessment. These writ petitions are dismissed by the High Courts as not maintainable. The aforesaid view taken is contrary to the law laid down by this Court in Calcutta Discount Co. Ltd. v. CIT [Calcutta Discount (P) Ltd. v. CIT, (1961) 41 ITR 191 (SC)]. We, thus, set aside the impugned judgments [Jeans Knit (P) Ltd. v. CIT, 2014 SCC OnLine Kar 5507] and remit the cases to the respective High Courts to decide the writ petitions on merits." 39. The judgment of the Hon'ble Division Bench in the case of Shri Shyam Sundar Dhanuka (supra) relied on by Mr. Dutt has been rendered in the peculiar facts of the case where a factual enquiry was needed. It was not a case of change of opinion but a case where "deeper probe into the matter was required". The matter at hand is a clear and apparent case of change of opinion. 40. The judgment in the case of M/s. Britannia Industries Limited (su....