2015 (1) TMI 564 - HC - Income Tax

Reopening of assessment - notice issued u/s 148 - Held that - There has been no formation of opinion before passing the assessment order in regular proceedings, for there to be any change of opinion in issuing the impugned notice. Although it is not necessary that the assessment order should contain discussion with regard to the issue raised but the petitioner should be able to show with evidence on record that during the assessment proceedings the very issue now raised was a subject of consideration during the process of passing an assessment order in regular proceedings. The reasons in support of the impugned notice do reflect an independent application of mind of the Assessing Officer. The reference to the audit query is only in support of the prima facie view arrived at by the Assessing Officer. The order disposing of objection while discussing the objection of the petitioner that reasons are mere change of opinion, states that it is not so, as this issue was not considered during the regular proceedings as the Assessing Officer had not applied his mind to the issue. Thus there is no improvement in the reasons. - Decided against assessee.

Summary

Issues:
Challenge to notice under Section 148 of the Income Tax Act, 1961 for reopening assessment for the assessment year 2007-2008.

Analysis:
1. The petitioner contended that the notice was invalid due to being issued on a mere change of opinion. The Assessing Officer sought to reopen the assessment based on the escapement of income chargeable to tax. The petitioner argued that all material was available during the original assessment, making the reopening invalid. The objections raised by the petitioner were rejected by the Assessing Officer.

2. The grievances raised by the petitioner included: (a) a change of opinion as the issue was already addressed during the regular assessment proceedings, (b) reliance on an audit query for the impugned notice, and (c) rejection of objections based on lack of application of mind during the regular assessment proceedings.

3. The court analyzed each grievance. Regarding the first grievance, the court found no evidence that the petitioner responded to the queries raised during the assessment proceedings. The lack of formation of opinion during the regular proceedings negated the claim of a change of opinion. The court also noted that the impugned notice was not solely based on the audit query but showed an independent application of mind by the Assessing Officer.

4. Concerning the last grievance, the court observed that the order rejecting objections did not improve upon the reasons furnished for the notice. The court concluded that there was no merit in the petitioner's contentions and dismissed the petition. The court clarified that its decision was a prima facie view and allowed the petitioner to raise contentions during reassessment proceedings and before appellate authorities.

5. The court dismissed the petition without costs, maintaining that the reasons for the impugned notice were valid and supported by an independent application of mind by the Assessing Officer. The petitioner was granted the opportunity to present their contentions in reassessment proceedings and before appellate authorities under the Act.