2021 (12) TMI 515 - HC - Income Tax

Reopening of assessment u/s 147 - Validity of reason to believe - deduction u/s 43B - HELD THAT - In this case a regular assessment order was passed under Section 143 (3) of the said Act. In reply to the Director of Audit, two Assessing Officers had disagreed with the view expressed by the Revenue Audit. One of the two officers who had disagreed with the view of Revenue Audit, inspite of his disagreement has reopened assessment. It is therefore obvious that he has not formed his own opinion that income has escaped assessment. Similar situation had arisen in Il and Fs Investment Managers Ltd. 2006 (11) TMI 181 - BOMBAY HIGH COURT In view of the above it is not a case that petitioner has not disclosed anything to respondents and a pre-condition for reopening assessment as per proviso to Section 147 of the Act not having been complied, we will hold that the impugned notice to reopen has been issued without jurisdiction.

Summary

Issues:
1. Validity of reopening assessment under Section 148 of the Income Tax Act, 1961.
2. Reliance on audit objections for reopening assessment.
3. Requirement of forming an independent opinion by the Assessing Officer.
4. Compliance with the pre-conditions for reopening assessment under Section 147 of the Act.

Analysis:

1. The petition sought a writ of Certiorari to quash the impugned notices and orders related to the reopening of assessment under Section 148 of the Income Tax Act, 1961. The Assessing Officer, Mr. Menon, initiated the proceedings based on pressure from Revenue Audit, as indicated by communications exchanged. The petitioner argued that the reopening was unjustified as the expenditure had already been allowed as a deduction under Section 43B of the Act in the year of actual payment, and the objections raised were contrary to established legal principles.

2. The Assessing Officer, Mr. Menon, relied on audit objections to reopen the assessment, despite the objections being previously addressed by his predecessor and other Assessing Officers. The petitioner contended that the objections raised by the audit were not tenable based on judicial pronouncements, including the Supreme Court's decision in Indian and Eastern Newspaper Society case, emphasizing that the Assessing Officer must independently evaluate the legal implications without being influenced by audit opinions.

3. The judgment highlighted the necessity for the Assessing Officer to form an independent opinion regarding income escaping assessment. It was noted that in a previous assessment order under Section 143(3) of the Act, two Assessing Officers had disagreed with the Revenue Audit's view. However, one of the officers still reopened the assessment without establishing his own belief that income had escaped assessment, leading to a lack of jurisdiction in issuing the impugned notice.

4. The Court emphasized that the petitioner had not concealed any information from the respondents, and the pre-conditions for reopening assessments under Section 147 of the Act were not met. Consequently, the Court held that the impugned notice to reopen the assessment lacked jurisdiction. The petition was allowed in favor of the petitioner, as per the prayer clause (a), with no costs awarded.