9911796707
TMI Blog2014 (12) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... dmission of the Petition, the Assessing Officer without disposing of the objections of the petitioner to the reasons in support of the impugned notices, passed two separate re-assessment orders dated 7th March, 2006 for Assessment Years 1998-99 and 1999-2000. This led to the Petitioner to amending both the Petitions to also mount a challenge to the two re-assessment orders dated 7th March, 2006 in these Petitions. Both the petitions were admitted on 28 April, 2006. 3. We are informed that the Petitioner has not challenged the re-assessment orders dated 7th March, 2006 passed for Assessment Year 1998-99 and 1999-2000 before the Appellate Authorities under the Act. 4. It is agreed between the Counsel that the issues involved in both the Petitions are identical. Therefore, for the sake of convenience, we shall refer to the facts in Writ Petition No.762 of 2006 relating to Assessment Year1998-99 for disposal of both these Petitions. 5. On 30th November, 1998, Petitioner filed its return of income for the Assessment Year 1998-99, declaring the total income of Rs. 25.45 lakhs. In its return of income, the Petitioner had claimed deduction of Rs. 1.66 Crores under Section 80HHC of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in the case of IPCA Laboratories Ltd. (supra). It has no different meaning and carries the same meaning, i.e. the positive profit worked out after taking into consideration the losses. The proviso is not an independent provision. Thus, in the light of the basic facts of the case and the above discussed decisions of the Apex Court of the land and the jurisdictional High Court, there exists cogent and relevant material, forming basis for initiation of re-assessment proceedings, in the instant case, within the meaning of section 147 read with section 148 of the Act. Further, Explanation-2 to Section 147 of the Act also confers jurisdiction to invoke the provisions of Section 147 of the Act, in the case, where the assessee has claimed excessive allowance or relief. In this case, there is a live link between the material on record and escapement of income chargeable to tax. Further, the decision of the Apex Court/High Court constitute valid basis for reopening of the assessment u/s. 147 read with Section 148 of the Act. 4. In view of this, I have reason to believe that the income chargeable to tax has escaped assessment with in the contemplation of Section147 read with Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act was subject of examination during scrutiny proceeding leading to the Assessment Orders dated 28th February, 2001 and 13th February 2002 for Assessment Years 1998-99 and 1999-2000 respectively. Therefore, issuing the notices impugned herein on the same ground is clear case of change of opinion. Therefore, the proceedings of reassessment are without jurisdiction; and (c) The Assessing Officer has passed the re-assessment orders dated 7th March, 2006 for both Assessment Years 1998-99 and 1999-2000 without disposing of the Petitioner's objections to the grounds in support of the impugned notices dated 25th January, 2005. This is contrary to decision of the Apex Court in GKN Drivshifts (supra). Therefore, it is on the basis of the above, it is submitted that the impugned notices for re-assessment being without jurisdiction the consequent re-assessment orders passed on 7th March, 2006, also do not survive. 10. As against the above, Mr. Arvind Pinto, learned Counsel appearing for the Respondent-Revenue submits opposing both the Petitions submits as under :- (a) The Assessment Orders dated 7th March, 2006 on re-assessment has already been passed for Assessment Years 1998-99 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissal of the Petitions on the plea of the alternate remedy without examining the merits of the petitioner's challenge to jurisdiction. Indubitably, in case the petitioner fail in its challenge to the jurisdiction to issue the impugned notices, the petition would be dismissed and the petitioner would be left to avail of the remedies, if any available under the Act. 12. The contention of the Respondent-Revenue that the Petitioner had submitted itself to the jurisdiction of the Assessing Officer during re-assessment proceeding leading to the orders dated 7th March, 2006 on is not correct. We find that a notice was issued on 23rd February, 2006 by the Assessing Officer, calling upon the Petitioner to furnish certain details for the purpose of re-assessment. Petitioner by its letters dated 24th February, 2006 recorded that at a meeting held on 23rd February, 2006 with the Assessing Officer, the Assessing Officer agreed to adjourn the hearing of the notice dated 23 February 2006 till 15th March, 2006. In spite of the above, Assessing Officer passed best judgment assessment order on 7th March, 2006 without any notice to the petitioner. Thus, there is no submitting to the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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