2009 (12) TMI 629 - HC - Income Tax

Reopening of assessment - main ground of re-opening, as stated in the reasons recorded, appears to be non-application of provisions of Section 40A(3) of the Act on the cash purchases made by the petitioner from two concerns - legal issue which is raised by the petitioner is that the person who records the reasons, the person who issues the notice of reopening and the person who has to pass the assessment order are different and hence the same is not permissible under the law, Successor Assessing Officer cannot issue notice under Section 147 of the Act on the basis of the reasons recorded by Predecessor Assessing Officer Hynoup Food and Oil Industries Limited (2008 - TMI - 31844 - GUJARAT HIGH COURT) - Held that - no infirmity in the issuance of the reopening notice by Mr. Katiyar. Even otherwise, there is no evidence before us which even remotely suggests that Mr. Katiyar, before issuing notice, has not recorded his satisfaction. These petitions are merely based on apprehensions. Notice of reopening of assessment cannot be challenged merely on apprehension, decision of this Court in the case of Hynoup Food and Oil Industries Limited (supra) has no application, and on this ground, the notice of reopening cannot be held to be invalid.

Summary

Issues involved: Challenge to notice of reopening for assessment years 2004-05, 2005-06, and 2006-07 under Article 226 of the Constitution of India.

Analysis:
1. Different Officers Recording Reasons and Issuing Notice:
The petitioner objected to the notice of reopening on the grounds that the reasons were recorded by one officer, but the notice was issued by a different officer. The petitioner argued that this discrepancy rendered the reassessment invalid. However, the Court noted that the officer issuing the notice had indicated his satisfaction and obtained necessary permissions. The Court held that there was no evidence to suggest that the officer did not record his satisfaction before issuing the notice. The objection based on different officers recording reasons and issuing notice was dismissed as mere apprehension without merit.

2. Non-Application of Mind in Recording Reasons:
The petitioner contended that the reasons for reopening assessment were based on non-application of mind, as they incorrectly stated purchases made from specific parties. The petitioner had not made purchases from these parties and had not claimed any expenditure towards them. The Court, however, found that the respondent had considered the petitioner's objections and concluded that they were factually incorrect based on statements and evidence. The Court held that the respondent had applied his mind to the issue, and the objections were rejected based on factual findings.

3. Different Officer for Framing Reassessment:
Another objection raised by the petitioner was that the officer responsible for framing reassessment was different from the one recording reasons and issuing notice, which was argued to be impermissible. The Court, however, found that the officer responsible for reassessment had jurisdiction over the case and had considered the reasons recorded for reopening. The Court held that organizational changes and transfers of cases did not affect the validity of the reasons recorded for reopening. The objection based on different officers for reassessment was deemed unsubstantiated.

4. Compliance with Legal Directions:
The Court noted that the respondent had passed a speaking order while rejecting the petitioner's objections, in compliance with the directions of the Apex Court. The Court found no substance in the challenges to the notice of reopening and summarily dismissed all three petitions challenging the reopening of assessments for the specified years.

In conclusion, the Court upheld the validity of the notice of reopening assessments for the years in question, rejecting the petitioner's objections related to different officers recording reasons, non-application of mind in recording reasons, and different officers for reassessment. The Court found that the respondent had considered the objections raised by the petitioner and had complied with legal directions in passing a speaking order.