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TMI Blog2025 (2) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... as discussed above. AO has no power to review.
Hence, the impugned action of the respondents is nothing but mere change of opinion on the assessment made already, which cannot be per se reason to reopen the earlier assessment order to reassess contrary to the law. There is no tangible material to come to the conclusion that there is escapement of income from the assessment.
It is the AO who needs to assess any disallowance under section 14A based on the information provided by the petitioner. Onus to make an appropriate determination of amount of expenditure in terms of section 14A of the Act lies on the assessing officer and when there is no failure on the part of the assessee in making available all the relevant account books, materials and documents, the assessing officer cannot assume jurisdiction under section 147 of the Act and more specifically cannot do so in an attempt to reopen the assessment after expiry of 4 years from the relevant assessment year when original assessment was made under Section 143 (3) of the Act - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-2016 has escaped assessment within the meaning of section 147 of the Act and hence, proposing to reassess the income and requiring the petitioner to furnish a return for the same. In response to the Impugned Notice-1, the petitioner submitted its Return of Income to the 1st respondent again on 16.04.2021. The 1st respondent issued a notice dated 15.06.2021 to the petitioner under section 143 (2) read with section 147 of the Act stating issues as per recorded for reopening and that income chargeable to tax of Rs. 2,15,35,000/- has escaped assessment under Section 147 of the Act for the AY 2015-2016. The petitioner was also issued with a notice dated 17.11.2021 stating that as per the information available on record, it is noticed from the balance sheets as on 31.03.2014 and 31.03.2015 that the total investments made by assessee in shares were to the tune of Rs. 132.62 Crs. and Rs.150.96 Crs. respectively as furnished by the petitioner and thereby the investments in shares during the previous year corresponding to the AY 2015-2016 have increased by an amount of Rs. 18.34 Crs. from the previous year corresponding to the AY 2015-2016. This notice also states that the assessee has de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther. 4. On the other hand, the learned standing counsel relying upon the counter affidavit of the respondent Nos.1 to 3 refers to the assessment order dated 28.12.2018, impugned notice dated 30.03.2021, returns furnished by the petitioner dated 16.04.2021, notice dated 29.11.2021 and the rejection of the objections dated 22.12.2021. He further submits that there are reasons for reopening of the assessment though there is no fresh material available on record. Basing upon the Return of Income filed by the petitioner, the respondent authorities have to take a decision whether there was any income chargeable to tax for the AY 2015-2016 which has escaped assessment within the meaning of section 147 of the Act and ultimately pleaded for sustaining the above said impugned notices and the impugned order. 5. In view of the above said facts and circumstances and basing upon the rival submissions made, it is to be seen that the 1st respondent issued the impugned notice under section 148 of the Income Tax Act, 1961 (Impugned Notice-1) for the AY 2015-2016 dated 30.03.2021 stating that they have reasons to believe that the income chargeable to tax for the said assessment year has escaped as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t/Deputy/Assistant Commissioner of Income Tax/ Income-tax Officer, National Faceless Assessment Centre, Delhi For which the petitioner also raised objections dated 29.11.2021 informing the department that the assessment has been completed under section 143 (3) and the petitioner disclosed fully and truly all the material facts necessary for the said assessment and the four years time specified under the first proviso of section 147 has expired on 31.03.2020 and the reassessment proceedings are not initiated validly. 7. The relevant portion of Section 147 of the Income Tax Act, 1961 read as under: 147. If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction to reopen the assessment. It was also observed that "mere change of opinion" cannot be per se reason to reopen drawing the conceptual difference between power to review and power to reassess. It was held that the Assessing Officer has no power to review but he has the power to reassess. The Assessing Officer has the power to reopen, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. The reasons must have a live link with the formation of the belief. 10. In the case of Madurai Power Corporation Private Limited v. Deputy Commissioner of Income Tax Circle-1 2020 SCC Online AP 752, in W.P.No.15201 of 2019, dated 30.01.2020, the then Division Bench of the High Court observed at Para No.12 of the said judgment that Section 147 of the Act further states that the Assessing Officer should have reason to believe that certain income has escaped the assessment on the basis of new facts/information which has come to his knowledge subsequently. Section does not confer any right to review when there is no new material or facts drawing a different conclusion is noticed. 11. Coming to the facts of this case again, the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, the assessment is completed as under: 13. Contrary to the above said Assessment Order dated 28.12.2018, the 3rd respondent ultimately issued the impugned order dated 22.12.2021 for the AY 2015-2016 by not accepting the objections of the petitioner, reopened the assessment by observing that reassessment proceedings will continue. Upon perusal of the material available on record and in view of the settled principles of law and the facts of the case as discussed above, it is clear that the petitioner filed its Return of Income for the AY 2015-2016 and all the audited financials including Form 3CA under section 44AB of the Income Tax Act, 1961, Balance Sheets and statement of Profit & Loss on 28.09.2015 itself, declaring the total income of Rs. 112,58,64,910/-. Then the 1st respondent completed the assessment under section 143 (3) of the Act and passed an Assessment Order dated 28.12.2018. But contrary to the first proviso of section 147 of the Income Tax Act, 1961, the above said impugned notice of the 1st respondent dated 30.03.2021 (Impugned Notice-1), notice of the 3rd respondent dated 29.11.2021 (Impugned Notice-2) and the impugned order of the 3rd respondent dated 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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