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TMI Blog2019 (6) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... e to tax has been under assessed. With regard to writing off of bad debts from export receivables resulting into income escaping assessment within the meaning of section 147 the reassessment proceedings have been initiated merely on reviewing the same subject matter of original assessment proceedings amounting to assessing the same set of facts already available with the department which is mere change of opinion on part of the respondent. AO during the course of original assessment has formed an opinion that the bad debts from export receivables can be written off during the pendency of the application for approval from Reserve Bank of India and as such, the respondent could not have formed a different opinion that income has escaped assessment as the petitioner did not have permission from the Reserve Bank of India to write off the bad debts from the export receivables. Therefore, in facts of the present case, impugned notice u/s 148 is without jurisdiction and authority of law as the respondent has reopened the proceedings merely on the ground that from the material once a view earlier adopted was erroneous one, such facts cannot be a ground for reassessment. - Decided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details including ledgers of persons whose bad debts were written off. The petitioner by letter dated 15.9.2015 furnished the details called for including the list of bad debts written off as on 31.3.2013 along with copies of relevant ledger accounts. 4.4 The Assessing Officer thereafter, issued another notice dated 14.10.2015 under section 142(1) of the Act calling upon the petitioner to furnish various details including the ledgers of person whose bad debts were written off during the year under consideration with narration of transactions and permission of Reserve Bank Of India ( for short RBI ) for writing off bad debts against dues arising on account of foreign transactions. The petitioner vide letter dated 21.10.2015 furnished the details called for along with ledgers of persons whose bad debts were written off and the communications made with the authorised dealer (Karur Vysya Bank) and with the Reserve Bank of India for writing off the dues outstanding in foreign currency as bad debts. 4.5 The Assessing Officer thereafter, called upon the petitioner to furnish the communication made with Export Credit Guarantee Corporation of India (here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such bad debts cannot be allowed without permission of RBI to write it off as per circular No.88 dated 12.3.2013 issued by RBI. The respondent has therefore, formed a reason to believe that income chargeable to tax has been underassessed by an amount of ₹ 3,00,73,657/since the petitioner did not have permission from RBI to write off debts from the export receivable. 4.10 The petitioner thereafter filed objections for reopening of assessment on 31.5.2018 which were rejected by the respondent by order dated 4.9.2018. The petitioner has therefore, filed captioned petition challenging the impugned notice issued under section 148 of the Act. 5. Mr. Tushar Hemani, learned advocate with Ms. Vaibhavi Parikh, learned advocate for the petitioner submitted that all details pertaining to bad debts written off, amounting to ₹ 3,00,73,657/from export receivable have been scrutinised by the Assessing Officer at the time of passing the assessment order under section 143(3) of the Act. He referred to the details submitted during the course of regular assessment as stated hereinabove and submitted that the Assessing Officer after verifying all the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, submitted that the respondent cannot take any action under section 147 of the Act, merely because he happens to have different opinion from that of his predecessor on the same set of facts. 8. It was submitted that on perusal of the reasons recorded, it is apparent that there is nothing to indicate that the respondent, in consequence of any information in his possession which came subsequent to framing of the original assessment, had reason to believe that income had escaped assessment. It was submitted that during the course of original assessment proceedings, the Assessing Officer having considered the details submitted by the petitioner consciously, built an opinion and did not call for any further information and clarifications while allowing deduction of bad debts claimed by the petitioner and as such it is not now open to the respondent to change such opinion and take a different stand based on the very same set of facts and information. It was further submitted that even on merits, there is no escapement of income chargeable to tax as claim of bad debts written off in books of account is allowable inasmuch as under section 36(1) (vii) of the Act, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20132014 within a period of four years from the end of relevant assessment year. On perusal of the reasons recorded by the respondent, it is revealed that the reason to believe has been formed as income chargeable to tax has been underassessed by an amount of ₹ 3,00,73,657/since the petitioner did not have permission from the RBI to write off the same as bad debt from the export receivable. During the original assessment proceedings, the Assessing Officer considered the claim of the petitioner in detail. The petitioner submitted all the required details called upon by the Assessing Officer in respect of the claim of bad debts written off including the bad debts written off pertaining to export receivables. With respect to foreign debts, the petitioner was called upon to furnish RBI permission. The petitioner replied vide communication dated 21.10.2015 pointing out that the application for permission to write off the bad debts is already made to the Reserve Bank of India. The Assessing Officer accepted the contention of the petitioner that upon application of RBI pending final approval, debts could be written off and the amount of bad debts written off was allowed and the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome to conclusion that there is escapement of income from assessment. 13. In the facts of this case, the respondent has formed a second opinion on the same material and has issued the impugned notice merely on the ground that on second thought a different view is possible. Such facts do not authorise him to reopen the assessment under section 147/148 of the Act. Therefore, if the Assessing Officer while passing the original assessment order chose not to give any findings in respect of any issue which is properly replied by the assessee company, that cannot give him or his successor in office to reopen the completed assessment or to contend that because the facts were not considered in the assessment order, full disclosure was not made as the entire material has been placed by the petitioner before the Assessing Officer at the time when the original assessment was made and on due application of mind to the materials before him, the Assessing Officer accepted the view canvassed by the assessee. Merely because he did not express the same in the assessment order that by itself would not give the respondent a ground to conclude that the income has escaped assessment f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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