2015 (5) TMI 275 - HC - Income Tax

Reopening of assessment - non deduction of TDS on interest, commission or brokerage, fees or any amount payable to resident contractor or sub-contractor for carrying out any work (including labour supply) - Held that - The assessee has claimed the said expenditure and said had resulted under assessment of income to the tune of ₹ 22,65,048/- in the case of assessee due to the failure on the part of the assessee to disclose truly all material facts necessary for his assessment. However, from the communication dated 19.09.2014 disposing of the objections raised by the petitioner - assesseee, it appears that the Assessing Officer had considered altogether a different and new issue with respect to the status of the petitioner-assessee as SSI unit. It is also required to be noted at this stage and from the profit and loss accounts, it appears that as such, the petitioner-assessee never claimed any deduction with respect to the payment of ₹ 22,65,048/-. Therefore, the ground on which, the Assessing Officer has tried to reopen the assessment i.e. the assessee had claimed ₹ 22,65,048/- as expenditure which was not allowable and, therefore, the said has resulted under assessment, is absolutely and factually incorrect. Therefore, as such, the formation of opinion by the Assessing Officer while reopening the assessment has been vitiated. Even otherwise, it is required to be noted that while disposing of the objections raised by the petitioner raised against the reopening of the assessment, the Assessing Officer has specifically stated that it was only for examining the issue with respect to the petitioner's claim/status as SSI unit, the notice under Section 148 has been issued. For examining the particular issue, the assessment cannot be reopened and that too beyond the period of 4 years. An assessment can be reopened on the reasons recorded and after the detailed examination, the Assessing Officer forms an opinion that there is any under assessment of the income and that too, due to failure on the part of the assessee to disclose truly and fully all the material facts necessary for the assessment, in case, the assessment proceedings are initiated beyond the period of 4 years. Under the circumstances, the formation of opinion without examining the issue (as according to the Assessing Officer, the issue is yet to be examined and the notice under Section 148 of the Act has been issued for examining the issue mentioned in paragraph No.7.2.) has been vitiated. - Decided in favour of assessee.

Summary

Issues:
Challenge to reopening of assessment for A.Y.2007-2008 under Section 148 of the Income Tax Act beyond the 4-year period.

Analysis:
The petitioner sought to quash the notice dated 17.03.2014 issued under Section 148 of the Income Tax Act for A.Y.2007-2008, citing that the assessment was being reopened beyond the permissible 4-year period. The reasons for reopening the assessment were related to non-deduction of TDS on certain payments made during the financial year 2006-07, resulting in disallowance of an expenditure claimed by the assessee. The Assessing Officer, in response to the objections raised by the petitioner, introduced a new issue regarding the petitioner's status as an SSI unit, deviating from the original grounds for reassessment.

Upon review, it was found that the Assessing Officer's formation of opinion to reopen the assessment was based on incorrect grounds, as the petitioner had not actually claimed the disallowed expenditure in question. Additionally, the Assessing Officer's decision to reopen the assessment solely to examine the petitioner's status as an SSI unit was deemed inappropriate for initiating reassessment proceedings beyond the statutory 4-year limit. The court held that an assessment can only be reopened if there is under-assessment due to the assessee's failure to disclose material facts, which was not the case here.

Consequently, the court quashed the impugned notice under Section 148 of the Act and set aside the reassessment proceedings for A.Y.2007-2008, ruling in favor of the petitioner. The petition was allowed, and no costs were imposed in the circumstances of the case.