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TMI Blog2017 (11) TMI 1355X X X X Extracts X X X X X X X X Extracts X X X X ..... r. For the relevant assessment year, the issue for taxation of entire revenue in India was not taken up by the Assessing Officer. Thus, according to the reasons assigned, there was tangible material for formation of belief by the Assessing Officer to reopen the assessment. It is in these circumstances, the notice u/s 148 of the Act was issued to the petitioner company on 28.3.2011. Thus it is not the change of opinion but the reassessment has been ordered on the basis of the tangible material placed on record necessitating the reassessment. Sufficient reasons have been assigned for reopening of the assessment. The objections raised by the petitioner company have been specifically dealt with by the respondent no.1. Impugned order dated 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner company sent a communication to the respondent no.1-Assistant Director of Income Tax, International Taxation, Dehradun on 16.12.2011 seeking reasons for reassessing the assessment. The respondent no.1 assigned the reasons for reopening of the case vide Annexure No.6. Petitioner company filed objections to the reasons for reopening of case vide Annexure No.7 on 19.12.2011. The respondent no.1, vide the impugned order dated 19.12.2011, rejected the objections filed by the petitioner company to the notice issued u/s 148 of the Act. 3. The respondent no.1 has categorically held that there was failure on the part of the assessee in bifurcating the receipts into outside India and inside India. The assessee has also conducted the busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to Section 147 of the Act, we find that, prior to the Direct Tax Laws (Amendment) Act, 1987, reopening could be done under the above two conditions and fulfilment of the said conditions alone conferred jurisdiction on the assessing officer to make a back assessment, but in Section 147 of the Act (with effect from 1-4-1989), they are given a go-by and only one condition has remained viz. that where the assessing officer has reason to believe that income has escaped assessment, confers jurisdiction to reopen the assessment. Therefore, post-1-4-1989, power to reopen is much wider. However, one needs to give a schematic interpretation to the words reason to believe failing which, we are afraid, Section 147 would give arbitrary powers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Circular No. 549 dated 31-10-1989, which reads as follows: 7.2. Amendment made by the Amending Act, 1989, to reintroduce the expression reason to believe in Section 147.-A number of representations were received against the omission of the words reason to believe from Section 147 and their substitution by the opinion of the Assessing Officer. It was pointed out that the meaning of the expression, reason to believe had been explained in a number of court rulings in the past and was well settled and its omission from Section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended Section 147 to reintroduce th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision on a particular matter in issue. It would have no application where the order of assessment does not address itself to the aspect which was the basis for reopening of the assessment. Their Lordships in paragraph no.19 have held as under:- 19. In the light of the authoritative pronouncements of the Supreme Court referred to above, which are binding upon us and the observations made by the High Court of Gujarat with which we find ourselves in respectful agreement, the action initiated by the assessing officer for reopening the assessment cannot be said to be either incompetent or otherwise improper to call for interference by a writ court. The Assessing Officer has in the reasoned order passed by him indicated the basis on which in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mere change of opinion cannot be a basis for reopening computed assessments would be applicable only to situations where the assessing officer has applied his mind and taken a conscious decision on a particular matter in issue. It will have no application where the order of assessment does not address itself to the aspect which is the basis for reopening of the assessment, as is the position in the present case. It is in that view inconsequential whether or not the material necessary for taking a decision was available to the assessing officer either generally or in the form of a reply to the questionnaire served upon the assessed. What is important is whether the assessing officer had based on the material available to him taken a view. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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