2014 (9) TMI 892 - HC - Income Tax

Reopening of assessment u/s 148 Bar of limitation Details of depreciation claimed given by assessee - Held that - The notice issued u/s 148 for reopening of case of the assessee for AY 2005-06 dated 26.12.2012 directed the petitioner to produce accounts and documents as also the information in respect of the concerned assessment year - The reasons for reopening u/s 147 does not say anywhere that on account of any failure on the part of the assessee, excessive depreciation had been allowed - The assessee had claimed and was allowed the depreciation at the rate of 25% on construction of offshore platform - the original assessment for the captioned year i.e. 2005-06 was completed u/s 143 (3) after the scrutiny and the notice was issued on 30.3.2012 which is after expiry of 4 years from the end of relevant assessment year i.e. 31.3.2006 and, therefore, case of the petitioner is that its case is not covered under first proviso to section 147 of the Act. Assessee had given details of depreciation claimed by the company - It had specified that there is no sale nor any act of discard of any depreciable assets during the year under question and additions were made - the assessee had stated that supporting documents are bulky and voluminous and it showed willingness to produce the same for verification at the time of assessment proceedings - In the assessment order passed on 30.12.2008, nowhere there is any reference of non-compliance of the direction of the AO - It also does not mention anywhere the absence of production of record ensured to be done at the time of assessment proceedings - in absence of any specific averment in the reasons recorded for reopening of the assessment, that there was any failure on the part of the assessee to disclose fully and truly all material facts, it would not be possible for the Court to allow the notice u/s 148 to be sustained,which is wholly without any backing of law. Structure of such kinds are not so uncommon that its true picture/ meaning cannot be grasped, without furnishing more details than already provided by the petitioner - Again, assuming without accepting that onus was entirely on the assessee to bifurcate all the three structures (i) The module large pre-built units meant for accommodation, production and drilling zones (ii) The Jacket foundation on which platform sits (iii) Derrick -the highest area of platform for drilling, it can be noticed that when specific query was already raised in relation to this in scrutiny assessment and answered by the petitioner as detailed hereinabove, documents were also offered while replying to such query, if they were not found necessary to be called while carrying out original assessment despite due application of mind to the very issue, this case surely does not lend jurisdiction to the AO to reopen the assessment beyond the period of four years from the end of the assessment year under question. Offshore platform as per the reasons recorded consisted of module, jacket and derrick - If there was any clarification that was further needed after the description of the items purchased and put to use, was particularly replied to by the assessee on 6th July, 2007, it was open for the AO to further raise the queries and call for more documents - In the event of the AO not being satisfied with the reply, he could have denied the depreciation as a claim made in the particular year by the assessee which was almost 50% of the total amount of claim of deprecation which ran into 56.77 crores - being a special knowledge of the assessee company dealing with the subject concerned, non-furnishing of those particulars should amount to not having revealed the primary facts necessary to be revealed by the assessee - in any case this being the reopening beyond the period of 4 years in absence of any material to indicate the failure on the part of the assessee to disclose fully and truly all material facts, when the assessee had discharged onus of having revealed the primary facts, on jurisdictional ground itself, notice must fail Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the notice for reopening the assessment under Section 148 of the Income Tax Act, 1961.
2. Whether there was a failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment.
3. Whether the reassessment proceedings were initiated due to a change of opinion by the Assessing Officer.

Issue-wise Detailed Analysis:

1. Validity of the notice for reopening the assessment under Section 148 of the Income Tax Act, 1961:
The petitioner challenged the notice dated 30.3.2012 issued by the respondent for reopening the assessment under Section 148 of the Income Tax Act, 1961. The notice was issued after the expiry of four years from the end of the relevant assessment year, which is permissible only if there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. The court emphasized that the reasons for reopening must specifically mention any such failure by the assessee. In this case, the reasons recorded did not contain any allegations of non-disclosure by the assessee.

2. Whether there was a failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment:
The petitioner argued that all material facts were fully and truly disclosed during the original assessment proceedings. The return of income was filed along with the Tax Audit Report, and all details of depreciation claimed, including those for the offshore platform, were provided. The Assessing Officer had raised specific queries regarding depreciation during the original assessment, and the petitioner had responded with detailed information. The court noted that the Assessing Officer had the opportunity to seek further details if required but chose not to do so. Therefore, it was held that there was no failure on the part of the assessee to disclose material facts.

3. Whether the reassessment proceedings were initiated due to a change of opinion by the Assessing Officer:
The court examined whether the reassessment proceedings were based on a mere change of opinion by the Assessing Officer. It was observed that the original assessment order had considered the depreciation claims, and the Assessing Officer had allowed certain claims while disallowing others. The court held that once the Assessing Officer had applied his mind to the facts and made a decision, reopening the assessment on the same facts would constitute a change of opinion, which is not permissible. The court cited various judgments to support the principle that reassessment cannot be initiated merely because the Assessing Officer changes his opinion or interprets the law differently.

Conclusion:
The court concluded that the notice for reopening the assessment was invalid as it was issued beyond the period of four years without any failure on the part of the assessee to disclose material facts. The reassessment proceedings were also deemed to be based on a change of opinion, which is not permissible under the law. Consequently, the petition was allowed, and the notice under Section 148 was quashed.