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TMI Blog2021 (9) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... P.Nos.14396 & 14397 of 2021 - - - Dated:- 3-9-2021 - Honourable Mr.Justice T.S.Sivagnanam And Honourable Mr.Justice Sathi Kumar Sukumara Kurup For the Appellant : Mr.Nithyaesh Natraj For the Respondent : Mr.Prabhu Mukunth Arunkumar, JSC JUDGMENT T.S.SIVAGNANAM, J. We have heard Mr.Nithyaesh Natraj, learned counsel appearing for the appellant and Mr.Prabhu Mukunth Arunkumar, learned Junior Standing Counsel accepting notice for the respondent. 2. This appeal filed by the appellant assessee is directed against the order dated 16.6.2021 in W.P.No.6543 of 2014, in which, the appellant sought to quash the reassessment proceedings initiated by the respondent herein under Section 147 of the Income Tax Act, 1961 (for short, the Act) for the assessment year 2006-07. 3. It is pertinent to note that the appellant assessee filed another writ petition in W.P.No.6542 of 2014 wherein the assessee sought for the issuance of a Writ of Certiorari to quash the order passed by the Central Board of Direct Taxes (CBDT) in Instruction No.2/2009 dated 09.3.2009 read with corrigendum to the instruction in so far as it related to 100% Export Oriented Units under the Soft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment would be a case of change of opinion. In support of such a contention, reliance was placed on the decision of the Hon'ble Supreme Court in the case of CIT Vs. Bhanji Lavji [reported in (1971) 79 ITR 582]. 9. It was contended by the appellant - assessee that where a deduction was considered and allowed, the subsequent withdrawal of the same under Section 148 of the Act amounted to change of opinion. The appellant assessee pointed out that they had been granted approval by the Authority as early as 17.4.2008 and based on such approval, deductions were claimed by the assessee under Section 10B of the Act, which were accepted by the Assessing Officer. All of a sudden, for the assessment year 2006-07, after the assessment was completed under Section 143(3) of the Act, the same was sought to be reopened by invoking the power under Section 147 of the Act. 10. Thus, the question, which is required to be decided in W.P. No.6543 of 2014, is as to whether the reopening of assessment was valid in law and was it a case of change of opinion and without deciding such a question, W.P.No.6543 of 2014 could not have been dismissed. This would be sufficient to set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to be reopened. Therefore, in the absence of any such allegation against the appellant assessee for non disclosure of primary facts, the reopening cannot be justified. 14. The learned Junior Standing Counsel appearing for the respondent submits that the assessee has not followed the procedure, which has been laid down by the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd. Vs. ITO [reported in (2003) 259 ITR 19], as the assessee has not given their objections to the reasons recorded by the Assessing Officer for reopening the assessment as communicated to the assessee vide letter dated 26.8.2013. 15. In our considered view, such a non adherence to such a procedure would be a fait accompli in the case on hand and more so, when W.P.No.6543 of 2014 was pending from the year 2014 and the challenge was to the notice issued under Section 147 of the Act. Therefore, at this distance of time, we are not inclined to issue a direction to the appellant assessee to file their objections to the reopening and once over again allow the Assessing Officer to take a decision as to whether the objections are sustainable or not. 16. Furthermore, the reasons fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was validly granted, was produced before the Assessing Officer at the time of scrutiny and the Assessing Officer also accepted the approval order and granted exemption. Thus, the reason stated in the impugned proceedings that the assessee committed a mistake cannot be accepted. The assessee was possessing a valid approval which was produced before the Assessing Officer and if a ratification is to be obtained, then the Assessing Officer, at the time of scrutiny, ought to have directed the assessee to get any such ratification certificate for the purpose of grant of exemption under Section 10B which the Department had not done. Thus, it was a mistake or omission committed by the Assessing Officer at the time of passing of the original assessment order. Even in such cases, if the reopening of assessment is made within a period of four years, then there is a ground for the Department to reopen the same. However, in the present case, the reopening of assessment is made beyond the period of four years and therefore, the statutory requirement contemplated under Section 147 is to be complied with scrupulously. Thus, the ground taken for reopening of assessment that the assessee has not dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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