2018 (10) TMI 1731 - HC - Income Tax

Reopening of assessment u/s 147 - reason to believe - sanction under section 151 - HELD THAT - Conditions to be satisfied for reopening assessment for the assessment year 2009-10, in terms of section 147 i.e., reason to believe that the income chargeable to tax has escaped assessment, non-disclosure of material facts fully and truly by the assessee is apparent. Assertion and denial by the parties in this behalf give rise to disputed questions of fact. Notice u/s 148 has been issued after sanction under section 151. At this stage no breach or non-compliance with sections 147, 148 and 151 of the Act is forthcoming. However, it gives rise to factual dispute. There is no jurisdictional error, or lack of jurisdiction forthcoming at this stage. Against reopening of assessment for the assessment year 2009-10, statutory efficacious remedies under the Act are available which cannot be allowed to be sidelined, exercise of jurisdiction under article 226 of the Constitution in the background of the factual disputes is not warranted so as to interfere with the proceedings so initiated. Writ petition is held to be not maintainable. The petitioners have efficacious remedies available under the Act which they have every right to exhaust. The disposal of this writ petition, the observations made hereinabove, shall be without prejudice to the rights of the petitioners in contesting the matter before available forum including appellate forum.

Summary

Issues Involved:
1. Validity of reopening assessment after four years.
2. Requirement of "reason to believe" for income escapement.
3. Full and true disclosure of material facts by the assessee.
4. Proper sanction under Section 151 of the Income-tax Act.
5. Maintainability of writ petition under Article 226 of the Constitution.

Issue-wise Detailed Analysis:

1. Validity of Reopening Assessment After Four Years:
The petitioners challenged the reopening of the assessment for the year 2009-10 after a lapse of four years, arguing it was unwarranted. The court noted that under Section 147 of the Income-tax Act, reopening is permissible if there is a reason to believe that income has escaped assessment, and this must be supported by proper sanction from the Chief Commissioner or Commissioner as per Section 151 of the Act. The court found that the Assessing Officer (AO) recorded reasons for reopening and obtained the necessary sanction, thus complying with the statutory requirements.

2. Requirement of "Reason to Believe" for Income Escapement:
The petitioners argued that the notice under Section 148 did not specify the reasons to believe that income had escaped assessment. The court highlighted that the AO’s note sheet provided detailed reasons, including the misclassification of capital expenditure as revenue expenditure, leading to escapement of income. The court concluded that the AO had a valid reason to believe that income chargeable to tax had escaped assessment.

3. Full and True Disclosure of Material Facts by the Assessee:
The petitioners contended they had fully and truly disclosed all material facts necessary for the assessment. However, the court observed that the AO’s note sheet indicated that the expenditure in question was wrongly claimed as revenue expenditure instead of capital expenditure. This misclassification suggested that the disclosure was not full and true, justifying the reopening of the assessment.

4. Proper Sanction Under Section 151 of the Income-tax Act:
The petitioners claimed that the sanction for reopening was mechanical and lacked proper application of mind. The court reviewed the records and found that the AO had submitted a detailed proposal to the Commissioner, who approved it after due consideration. The court determined that the sanction was not mechanical and involved proper application of mind, thus meeting the requirements of Section 151.

5. Maintainability of Writ Petition Under Article 226 of the Constitution:
The respondents argued that the writ petition was not maintainable as the petitioners had alternative remedies available under the Income-tax Act, including appeals before the Deputy Commissioner (Appeals), the Appellate Tribunal, and the High Court. The court agreed, emphasizing that the existence of alternative remedies typically precludes the exercise of writ jurisdiction. The court cited several precedents to support this principle and concluded that the petitioners should exhaust their statutory remedies before seeking relief under Article 226.

Conclusion:
The court dismissed the writ petition as not maintainable, directing the petitioners to pursue the available statutory remedies. The judgment emphasized that the conditions for reopening the assessment were met, including the existence of a reason to believe that income had escaped assessment and proper sanction under Section 151. The court also noted that the petitioners had not made a full and true disclosure of material facts, justifying the reopening of the assessment.