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TMI Blog2010 (2) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 148 of the Income-tax Act, 1961 by which an assessment which was carried out under section 143(3) was sought to be reopened beyond a period of four years from the expiry of the relevant assessment year. 3. The petitioner derives a major source of its income from its business of providing audiovisual television software ("content"), films, events and other like activities, from subscription income received from distribution of channels, advertisements, sales and agency fees from marketing of airtime. As a content provider, the petitioner develops the content in-house or gets it developed from other software production houses under its supervision and control. Amongst the activities of the petitioner is the distribution of vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and for deduction under section 80HHF was disallowed. 5. On March 25, 2009 the Assistant Commissioner of Income-tax issued a notice under section 148 proposing to reopen the assessment proceedings for the assessment year 2002-03 on the ground that there was reason to believe that the income of the petitioner chargeable to tax for the assessment year had escaped assessment. By a communication dated July 8, 2009, reasons were furnished to the petitioner for reopening the assessment. The reasons furnished by the Assessing Officer record that during the course of assessment proceedings for the assessment year 2005-06, the Assessing Officer had made one specific addition under the head advertisements, sales promotion and market research expe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2009. The representation made by the petitioner was disposed of by the Assessing Officer on September 29, 2009. The Assessing Officer acknowledged the fact that the notice under section 148 was issued beyond a period of four years from the end of the assessment year 2002-03. Nonetheless, the reopening of the assessment is sought to be justified on the ground that the assessee did not submit comprehensive details pertaining to the issue, warranting reopening of assessment under section 147/148. 8. Counsel appearing on behalf of the petitioner urged three submissions in support of the challenge to the notice under section 148. Firstly, it was submitted that the reopening of assessment has taken place beyond a period of four years of the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of this court. Thirdly, it is submitted that full details were furnished by the assessee of its advertisement and sales expenses during the course of the assessment proceedings. Those were inquired into when the order of assessment was passed under section 143(3). Issuance of a notice under section 148 would, therefore, merely amount to a change of opinion, which is not permissible in view of the judgment of the Supreme Court in CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561. 9. On the other hand, it was urged on behalf of the Revenue that (i) the assessment was sought to be reopened on the basis of the proceedings before the Assessing Officer for a subsequent assessment year, namely, the assessment year 2005-06. The Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of advertisement time slots to Indian advertisers." 11. During the course of the assessment proceedings, the petitioner was called upon to furnish details specifically with reference to the expenditure incurred by it on advertisements, sales promotion and market research by a communication dated December 3, 2004 of the Assessing officer. In response to the communication, the petitioner by a letter dated December 28, 2004 furnished details of the selling and distribution expenses, including those incurred on marketing research and studies. A copy of those communications together with the details submitted by the petitioner have been annexed to the proceedings before the court. Hence during the course of the assessment proceedings, the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the Assessing Officer had erred in not doing so, unless there was a failure on the part of the assessee to fully and truly disclose all material facts necessary for assessment. Absent the existence of the jurisdictional condition precedent, the assessment cannot be reopened beyond a period of four years after the expiry of the relevant assessment year, as has been done in the present case. In the circumstances, the notice for reassessment is liable to be quashed and set aside solely on the ground that the Revenue has failed to establish the existence of the jurisdictional condition precedent to the exercise of the power to reopen an assessment beyond a period of four years of the expiry of the relevant assessment year. 13. The petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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