Bombay High Court
Pr. Commissioner Of Income Tax-3 vs M/S. Reliance Industrial ... on 6 February, 2019
Bench: Akil Kureshi, M.S. Sanklecha
9. os itxa 1400-16.doc
R.M. AMBERKAR
(Private Secretary)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
INCOME TAX APPEAL NO. 1400 OF 2016
Pr. Commissioner of Income Tax -3, Mumbai .. Appellant
Versus
M/s. Reliance Industrial Infrastructure Ltd .. Respondent
...................
Mr. Sham Walve for the Appellant
Mr. Madhur Agrawal a/w Mr. P.C. Tripathi i/by Raj Darak for the
Respondent
...................
CORAM : AKIL KURESHI &
M.S. SANKLECHA, JJ.
DATE : FEBRUARY 6, 2019.
P.C.:
1. Revenue is in the appeal against the judgment of the Income Tax Appellate Tribunal ("the Tribunal" for short) dated 23.9.2015 raising following question of law for our consideration:-
" Whether on the facts and in the circumstances of the case and in law, the Tribunal has erred in quashing the proceedings under Section 147 of the I.T. Act by merely saying that it is change of opinion of the Assessing Officer without considering the fact that the Assessing Officer has never examined the assessee's claim of contractual liability in place of custom duty during the assessment proceedings?"
1 of 4 ::: Uploaded on - 08/02/2019 ::: Downloaded on - 08/02/2019 22:31:06 :::
9. os itxa 1400-16.doc
2. The issue relates to the validity of reopening of assessment in case of the respondent assessee. The return filed by the respondent for the assessment year 1999-00 was taken in scrutiny by the Assessing Officer. One of the issues which the Assessing Officer examined was the assessee's claim of expenditure on payment of custom duty on SCADA system purchased from one Sonal Electronics. The assessee satisfied the queries of the Assessing Officer upon which the final order of assessment was passed. To reopen such assessment, the Assessing Officer had issued the impugned notice. In the reasons recorded for issuing the notice, he had referred to the investigation carried out by the Customs Department on the components imported by the assessee through M/s. Eastern Peripherals for SCADA alleging that no duty was paid. He noticed that the said M/s. Eastern Peripherals had thereupon filed declaration under Kar Vivad Samadhan Scheme of 1998 ("KVSS" for short) and assessee had undertaken to pay residual duty. On the basis of such information, the Assessing Officer was of the opinion that the expenditure ought not to have been allowed.
2 of 4 ::: Uploaded on - 08/02/2019 ::: Downloaded on - 08/02/2019 22:31:06 :::
9. os itxa 1400-16.doc
3. The Tribunal by the impugned judgment held that the notice of reopening was invalid on the ground that the entire issue was examined by the Assessing Officer during the original assessment proceedings and the action of reopening of assessment was therefore, based on change of opinion.
4. Having heard the learned counsel for the parties and having perused the material on record, we notice that the reopening of assessment was done beyond the period of four years from the end of relevant assessment year. The entire issue of the assessee's claim of custom duty paid on imports of SCADA was examined by the Assessing Officer in the original assessment proceedings. Despite this, if the Assessing Officer was in possession of information then not available to him, sufficient to enable him to form a belief that income chargeable to tax had escaped assessment, reopening of assessment that too beyond the period of four years could still be resorted to. In the present case, however, the entire information or material which the Assessing Officer now seeks to place reliance upon, was before him during the original assessment. This fact was brought to his notice in a 3 of 4 ::: Uploaded on - 08/02/2019 ::: Downloaded on - 08/02/2019 22:31:06 :::
9. os itxa 1400-16.doc detail reply filed by the assessee to the queries raised by the Assessing Officer in which assessee referred the entire investigation of the Custom Department leading to the filing of declaration under KVSS. The Assessing Officer, therefore, did not have any new or additional material on which the impugned notice was based. In the result, the appeal is dismissed.
[ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ]
4 of 4
::: Uploaded on - 08/02/2019 ::: Downloaded on - 08/02/2019 22:31:06 :::