2021 (12) TMI 1083 - HC - Income Tax

Reopening of assessment u/s 147 - deduction claimed under Section 10B,deduction under Section 80HHC - HELD THAT - We find that the appellant wanted extension of time for the respondent to pass appropriate orders, since the appellant was in the process of collating details of all pending litigations, which were initiated/pending prior to the acquisition of the appellant company by Ms/.Dhanuka Laboratories Ltd. This petition was considered and the learned Single Bench extended the time and subsequently, the appellant had filed this appeal before this Court and the appeal was not numbered immediately because, change of cause title has to be ordered and when the appeal was in the process of being numbered, it appears that the appellant had made an oral mention before the learned Single Bench for further extension of time. From the affidavit filed in support of the Miscellaneous Petition, seeking extension of time, which was filed during July 2021, we find that the appellant was agreeable to cooperate in the proceedings before the respondent The appellant cannot be of disadvantageous position, if they are not permitted to canvass the issue regarding validity of the reopening proceedings more so when, the learned Writ Court has not out rightly rejected the contentions raised by the appellant questioning the validity of the reopening. We had appreciated the said submission of the learned counsel for the appellant, as observed, a prima facie finding has been recorded by the learned Writ Court, but we do not find any conclusive finding on the validity of the reopening of the assessment after taking note of the objections, which have been raised by the appellant questioning the reopening. Therefore, we are of the view that the appellant should not be put to prejudice while filing an appeal before the CIT(A) as against the assessment order wherein, they should be permitted to also raise the issue regarding the validity of the reopening, which can be decided by the CIT(A) as first among the several issues. For such reason, we are inclined to vacate all findings, which have been recorded by the learned Single Bench touching upon the validity of the reopening proceedings. Writ appeal is partly allowed and the observations and findings recorded by the learned Single Bench touching upon the validity of the reopening of the assessment are vacated and the appellant is granted liberty to file appeal before the Commissioner of Income Tax (Appeals) questioning the correctness of the assessment order dated 01.10.2021 canvassing all factual and legal grounds including the validity of the reopening of the assessment and in the event, the appellant does so, the CIT(A) shall consider the issue relating to the validity of the reopening as first among the several issues, which may be raised before the said authority

Summary

Issues:
1. Validity of the notice issued under Section 148 of the Income Tax Act, 1961.
2. Jurisdiction of the respondent to reopen the assessment.
3. Change of opinion as a ground for reopening the assessment.

Issue 1: Validity of the notice under Section 148:
The appellant challenged a notice issued under Section 148 of the Income Tax Act, 1961, dated 11.11.2009, and subsequent proceedings where objections for reopening were rejected. The appellant contended that the reopening was a case of change of opinion, questioning the jurisdiction of the respondent to reopen the assessment based on the reasons provided in the proceedings dated 23.04.2010. The Single Bench observed prima facie that the reopening seemed in order.

Issue 2: Jurisdiction to reopen the assessment:
Three main issues were subject to reopening. Firstly, the deduction claimed under Section 10B of the Act. The appellant argued that since the Assessing Officer had already considered and reduced the disallowance during scrutiny assessment, reopening for the same issue would amount to a change of opinion. Secondly, the deduction under Section 80HHC was not allowed during scrutiny assessment under Section 143(3), and a subsequent order under Section 154 was challenged before the Tribunal. The appellant contended that this could not be a reason for reopening. The third issue arose from a survey conducted after the notice under Section 148, dated 11.11.2009, and the amount in question was remitted by the assessee.

Issue 3: Change of opinion as a ground for reopening:
The appellant filed a Miscellaneous Petition seeking an extension of time for the respondent to pass appropriate orders, stating the need to collate details of pending litigations. The Single Bench extended the time, and subsequently, the appellant filed an appeal. The Court noted that while the reopening seemed in order, there was no specific finding on the appellant's argument that it was a case of change of opinion. The Court vacated all findings by the Single Bench on the validity of the reopening, granting the appellant liberty to file an appeal before the Commissioner of Income Tax (Appeals) questioning the correctness of the assessment order dated 01.10.2021, including the validity of the reopening.

In conclusion, the High Court allowed the writ appeal partly, vacating the findings on the validity of the reopening and granting the appellant the liberty to raise these issues before the Commissioner of Income Tax (Appeals). The Court emphasized that the appellant should not be disadvantaged and should be permitted to raise the issue of the validity of the reopening in the appeal process.