9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (2) TMI 513 - HC - Income TaxReopening of assessment - assessee is not entitled to benefit of cost of acquisition of land as claimed by the petitioners during the regular assessment proceedings - Held that - The jurisdiction to issue a reopening notice would arise if the Assessing Officer has reasonable belief that the income chargeable to tax has escaped assessment. This belief cannot be based on mere change of opinion i.e. the issue of reopening notice as recorded in the reasons was subject matter of consideration in the regular assessment proceedings. This for the reason that the power to reopen an Assessment is not a power to review an order. The Supreme Court in CIT vs. Kelvinator of India Ltd. 2010 (1) TMI 11 - SUPREME COURT OF INDIA has held that reason to believe in Sections 147/148 cannot include power to reopen assessment on mere change of opinion. The Court observed that reassessment is different from Review. We find that both CIT (A) as well as the Tribunal have on facts held that the issue raised in reopening notice was subject matter of consideration in the regular assessment proceedings leading to an order under Section 143(3) of the Act. Therefore, it is clear case of change of opinion. Nothing has been shown to us that the concurrent findings of the CIT (A) and the Tribunal is perverse.
Issues:
Jurisdiction to issue reopening notice under Section 148 of the Income Tax Act, 1961. Analysis: The case involved an appeal challenging the order passed by the Income Tax Appellate Tribunal regarding the reopening of assessment for the Assessment Year 2003-04. The main question raised was whether the reopening of assessment was justified, considering the Assessee Company's claim of deduction for indexed cost of land while computing Long Term Capital Gain on the transfer of Land Development Rights. The Tribunal dismissed the Revenue's appeal, upholding the order of the Commissioner of Income Tax (Appeals) and concluding that the reopening proceedings were without jurisdiction due to a change of opinion. The Tribunal found that the issue in the reopening notice had already been addressed in the regular assessment proceedings under Section 143(3) of the Act, making it a case of change of opinion. The Assessing Officer's jurisdiction to issue a reopening notice under Section 148 of the Act was thoroughly examined. It was emphasized that for a reopening to be valid, the Assessing Officer must meet the requirements of Sections 147/148 of the Act. The Court highlighted that the power to reopen an assessment is not a power to review an order, as established in the case of CIT vs. Kelvinator of India Ltd. The Court clarified that the belief that income has escaped assessment cannot be solely based on a change of opinion. Both the CIT (A) and the Tribunal concluded that the issue raised in the reopening notice had already been considered in the initial assessment proceedings, leading to the order under Section 143(3) of the Act. Therefore, the reopening was deemed unjustified as it amounted to a change of opinion, not a valid reason to reopen the assessment. In conclusion, the Court dismissed the appeal, stating that the question raised did not give rise to any substantial question of law and thus was not entertained. The decision highlighted the importance of satisfying the requirements of the Act for issuing a reopening notice and reiterated that a mere change of opinion is not a valid basis for reopening an assessment.
|
