9911796707
TMI Blog2022 (2) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... not be made under Section 143(3) - Petitioner has explained the full facts vide its letter dated 14th November 2007. Amount has been offered to tax by petitioner in the succeeding Assessment Year 2006 2007 and assessed. It is only thereafter the Assessing Officer has passed the assessment order dated 30th November 2007 in which he has thoroughly discussed the explanation of the assessee on the issue of provision for customs duty in para 5 of the assessment order and held that the sum was disallowable under Section 143(b) of the Act on the ground that there was no actual payment. In computing the total income under the normal provisions of the Act, the Assessing Officer started from the business income as returned by petitioner, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Poojary, i/b Mulla Mulla, CB C, for the Petitioner. Mr. Suresh Kumar, for the Respondents. ORDER: 1. Petitioner is a company engaged in the business of petroleum refinery. For Assessment Year 2005 2006 petitioner filed a return of income on 29th October, 2005, in which it disclosed total income of Rs.Nil under the normal provisions of the Act and book profits of ₹ 891,15,21,678 under Section 115JB of the Income Tax Act, 1961 ( the Act ). The return of income was accompanied with a copy of petitioner s audited accounts for the year ended 31st March 2005, the Tax Audit Report dated 20th October 2005 in Form 3CA and 3CD and the report in Form 29B dated 20th October 2005 setting out the computation under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards provisions of non-moving inventory. Objection to reopening was filed by petitioner vide its letter 11th November 2011 and the objection came to be rejected by an order dated 26th November 2012, which is also impugned in this petition . 5. Mr. Mistri submitted that, (a) under the proviso to Section 147 of the Act an assessment completed under Section 143(3) of the Act, cannot be reopened after the expiry of four years from the end of the assessment year unless it is shown that the assessee has either failed to furnish the return or has not made a full and true disclosure of all material facts. Respondent no.1 has not alleged in the recorded reasons that there has been any failure on the part of petitioner to make a full and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as the provisions of customs duty liability amounting to ₹ 105,45,10,183/-, advance doubtful of recovery of ₹ 42,94,40,678/- and provisions for non-moving of inventory of ₹ 20,00,000/- was erroneously not added to book profits determined for Assessment Year 2005 - 2006 even though such provisions were not ascertained liabilities. 8. We have heard the Counsels and considered the petition, the documents annexed to the petition and also the affidavit-inreply. 9. The Proviso to Section 147 of the Act provides that where an assessment under Section 143(3) has been made for the relevant assessment year, no action shall be taken under Section 147 after the expiry of four years of the end of the relevant assessment year, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading Provision for Non-moving stores spares ; (b) In the computation of normal income, the said amount was added back (disallowed) by way of item (g). Thus there has been a full and true disclosure of the material facts by petitioner. It may be noted at the cost of repetition that in the recorded reasons, it has not been alleged that there has been any failure on the part of the assessee to make a full and true disclosure of the material fats. 10. Assessing Officer has also asked petitioner to specifically explain the facts relating to the sum of ₹ 105,45,10,183/debited to the P L Account towards provisions for customs duty and why a disallowance should not be made under Section 143(3) of the Act. Petitioner has expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso applied his mind to the computation of book profits under Section 115JB of the Act. In the assessment order, respondent no.1 has held that petitioner s deferred tax liability of ₹ 512,47,42,000/- had to be added to the book profits. He computed the book profit at ₹ 140,362,63,678/- and computed total tax payable by petitioner at ₹ 110,06,18,525/-. 13. Therefore, in our view, there has been a full and true disclosure of the material facts by petitioner and it is a clear case of change of opinion to take a different view relying on the same set of documents. Change in opinion cannot construe reason to believe . 14. Even in the order impugned rejecting the objections, respondent no.1 has not disputed that there h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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