2017 (12) TMI 1421 - HC - Income Tax

Deduction admissible under Section 36(1)(viia) - reopening of assessment - Held that - In any event, the Tribunal remanded the matter for de novo re-adjudication and it would mean that the assessee would be entitled to canvass all the points, which they raised earlier before the Commissioner of Income Tax (Appeals) as well as in the grounds raised in these appeals including the substantial questions of law, which have been raised by the assessee. Therefore, we find that at this stage, the above referred to questions as framed by the assessee or that of the Revenue do not arise for consideration, as the common order passed by the Tribunal is an order consenting for remand of the matters before the Commissioner of Income Tax (Appeals) for re-adjudication de novo after granting the assessee an opportunity of being heard. It is needless to state that all issues are left open to be re-agitated before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) shall decide the matters afresh without being influenced by his earlier order.

Summary

Issues involved:
1. Interpretation of Section 36(1)(viia) and Rule 6ABA by Assessing Officer and Commissioner of Income Tax (Appeals)
2. Right of Assessing Officer to reopen assessment based on change of opinion
3. Barred by limitation for Assessing Officer's notices under Section 143(2)
4. Tribunal's authority to cancel reassessment based on change of opinion
5. Failure to disclose fully and truly all material facts necessary for assessment

Issue 1: Interpretation of Section 36(1)(viia) and Rule 6ABA
The appeals were filed by the assessee challenging the literal interpretation of Section 36(1)(viia) and Rule 6ABA by the Assessing Officer. The key question raised was whether the Commissioner of Income Tax (Appeals) could enhance the assessment by providing a different interpretation based on non-jurisdictional High Court decisions and contra judgments of the jurisdictional Tribunal. The Tribunal's order remanded the matters to the Commissioner of Income Tax (Appeals) for de novo re-adjudication after granting the assessee an opportunity to be heard, ensuring all points raised could be canvassed.

Issue 2: Right of Assessing Officer to reopen assessment based on change of opinion
The Revenue filed an appeal questioning the cancellation of reassessment by the Tribunal on the ground of change of opinion. The Tribunal's consent order agreed to remand the matters to the Commissioner of Income Tax (Appeals) for fresh consideration, allowing the assessee to raise all points, including substantial questions of law. The Tribunal's decision to remand the matter for de novo re-adjudication indicated that the assessee would have the opportunity to present their case fully.

Issue 3: Barred by limitation for Assessing Officer's notices under Section 143(2)
The appeals also raised concerns regarding the limitation for the Assessing Officer's notices under Section 143(2) based on the dates mentioned in the notices and the return of income filed by the appellant. The Tribunal's order allowed for a fresh consideration of these issues by the Commissioner of Income Tax (Appeals) without being influenced by the earlier order.

Issue 4: Tribunal's authority to cancel reassessment based on change of opinion
The Tribunal's decision to cancel the reassessment was questioned by the Revenue, arguing that no opinion was formed during the original assessment proceedings. The Tribunal's order was based on the failure of the assessee to disclose fully and truly all material facts necessary for assessment, leading to the cancellation of the reassessment.

In conclusion, the High Court disposed of the tax case appeals, emphasizing that all issues were left open to be re-agitated before the Commissioner of Income Tax (Appeals) for fresh consideration. The Tribunal's order for remand allowed for a comprehensive review of the matters, ensuring a fair opportunity for the assessee to present their case.