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TMI Blog2019 (7) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... case, it is not in dispute that reopening is based upon the return of income filed by the assessee at the first instance. There is no allegation against the assessee that there was failure on the part of the assessee to make a true disclosure, nor the assessing officer had relied on any tangible material, which has come to his knowledge after the filing of the return and intimation under Section 143(1), justifying reopening. Therefore, to reopen an assessment based on the return filed by the assessee, will clearly be a case of change of opinion and consequently bad in law. - Decided in favour of assessee - Tax Case (Appeal) No.702 of 2009 - - - Dated:- 11-7-2019 - Mr. Justice T.S. Sivagnanam And Mrs. Justice V. Bhavani Subbaroyan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act, by issuance of a communication dated 29.01.2004. After more than 2 years, a notice under Section 148 was issued on 22.11.2006, alleging that the assessee, in his return of income, had made excess claim of deduction under Section 80HHC. The assessee offered his explanation, justifying the claim for deduction and requested the return of income dated 29.10.2001 to be treated as return in pursuance to the notice under Section 148 of the Act dated 29.11.2006. Nothing happened thereafter for over four months. When the assessee was issued another notice under Section 148 of the Act dated 13.03.2007 for the very same reason, alleging excess claim deduction under Section 80 HHC, the assessee offered his explanation, justifying the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61 (SC) . However, the question before us in this appeal is whether the finality attached to an assessment, pursuant to a communication under Section 143(1)(a) could be disturbed by invoking the power under Section 147 and under what circumstances it can be done. 5. This issue was considered in the case of CIT -Vs- Orient Craft Ltd (2013) 354 ITR 536 , wherein the Court held as follows. 13. Having regard to the judicial interpretation placed upon the expression reason to believe , and the continued use of that expression right from 1948 till date, we have to understand the meaning of the expression in exactly the same manner in which it has been understood by the courts. The assumption of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve could be circumvented by first accepting the return under Section 143(1) and thereafter issue notices to reopen the assessment. An interpretation which makes a distinction between the meaning and content of the expression reason to believe in cases where assessments were framed earlier under Section 143 (3) and cases where mere intimations were issued earlier under Section 143(1) may well lead to such an unintended mischief. It would be discriminatory too. An interpretation that leads to absurd results or mischief is to be eschewed. 6. This decision was followed in the case of Principal CIT -Vs- Tupperware India (P) Ltd., (2016) 65 Taxmann.com 17(Delhi) . Similar view was taken in Khubchandani Healthparks (P) Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Section 147 does not make any distinction between an order passed under Section 143(3) and the intimation issued under Section 143(1) and therefore, it is not permissible to adopt different standards while interpreting the words reason to believe vis-a-vis Section 143(1) and Section 143(3). In the instant case, it is not in dispute that reopening is based upon the return of income filed by the assessee at the first instance. There is no allegation against the assessee that there was failure on the part of the assessee to make a true disclosure, nor the assessing officer had relied on any tangible material, which has come to his knowledge after the filing of the return and intimation under Section 143(1), justifying reopening. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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