Gujarat High Court
Rasna Private Limited vs Deputy Commissioner Of Income Tax, ... on 18 March, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8373 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
✓
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RASNA PRIVATE LIMITED
Versus
DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3(1)(1),
AHMEDABAD
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Appearance:
MR B S SOPARKAR(6851) for the Petitioner(s) No. 1
MS MAITHILI D MEHTA(3206) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 18/03/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr. B. S. Soparkar for the petitioner and learned advocate Ms. Maithili D. Mehta for the Page 1 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined respondent.
2. Having regard to the controversy involved in this petition, which is in a narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for hearing.
3. Rule returnable forthwith. Learned advocate Ms. Maithili D. Mehta waives service of notice of rule on behalf of the respondent.
4. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the notice issued under section 148A(b) of the Income Tax Act, 1961 (for short "the Page 2 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined Act") dated 21.03.2022, order dated 07.04.2022 passed under section 148A(d) of the Act and notice under section 148 of the Act of even date.
5. Brief facts of the case are that the petitioner is a limited company and is engaged in the business of manufacturing and trading of fruit based drink and other products.
6. The petitioner filed revised return of income for Assessment Year 2018-2019 on 29.03.2019 offering total income at Rs.3,79,21,580/-.
7. The return of income was taken up for scrutiny for examining deductions claimed by the petitioner among other issues. Page 3 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025
NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined Notice dated 22.09.2019 under section 143(2) of the Act read with Rule 12E of Income Tax Rules, 1962 and notice dated 21.12.2020 under section 142(1) of the Act was issued to the petitioner specifically inquiring into the deduction claimed under section 80IC of the Act.
8. The petitioner submitted all the details asked for vide letter dated 19.01.2021. Eventually the assessment order came to be passed under section 143(3) of the Act on 24.03.2021 assessing income of the petitioner at Rs.4,48,43,799/-.
9. Thereafter notice came to be issued upon the petitioner calling for information under section 133(6) of the Page 4 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined Act on 16.02.2022 from the respondent.
10. The petitioner provided the details sought for vide letters dated 25.02.2022 and 09.03.2022.
11. The respondents thereafter issued the impugned show cause notice under section 148A(b) of the Act on 21.03.2022 along with the details of information on the basis of which the respondent believed that income chargeable to tax had escaped assessment for Assessment Year 2018-2019.
12. The petitioner thereafter filed detailed response against the same on 23.03.2022 and 26.03.2022 indicating as to why no income has escaped assessment and why the proceedings ought to be dropped. Page 5 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025
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13. The respondent disposed off the objections filed by the petitioner vide impugned order under section 148A(d) of the Act dated 07.04.2022. The respondent also issued notice under section 148 of the Act of even date.
14. Being aggrieved by the same, the petitioner has preferred the present petition.
15. Learned advocate Mr. B.S. Soparkar for the petitioner submitted that notice under section 148A(b) of the Act is issued on two grounds namely, firstly, that the petitioner failed to deduct TDS on Fees for balance Commission/professional/ Technical Service of Rs. 16.20 crore and Page 6 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined secondly, loss of earlier year was not reduced from the profit of current year while computing deduction under section 80IC of the Act.
16. It was submitted that the petitioner filed reply to the notice under section 148A(b) of the Act contending that the petitioner has deducted TDS from professional fees and technical service fees and the same is reflected in TDS return filed by the petitioner. It was pointed out that however instead of provision of section 194J, section 194H of the Act is mentioned in the return and therefore, query is raised for non deduction of TDS by the petitioner. He referred to TDS returns sumitted before the Assessing Officer during the course Page 7 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined of regular assessment in response to query raised.
17. With regard to the deduction under section 80IC, it was pointed out that the Assessing Officer during the regular course of assessment raised query in respect of the said deduction which was replied by the petitioner in detail by letter dated 19.01.2021 and therefore, there is change of opinion by the respondent Assessing Officer to point out that loss of earlier year was not reduced from the profit of the current year while computing the deduction. It was t therefore, submitted that for both the issues, there is no income which has escaped assessment and the impugned order under section 148A(d) of the Act and Page 8 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined consequential notice under section 148 of the Act was issued merely on change of opinion which is not permissible so far as issue of deduction under section 80IC of the Act is concerned.
18. In support of his submission with regard to change of opinion which is not permissible, reliance was placed on the following decisions:
1) Hitech Outsourcing Services v.
Commissioner of Income Tax reported in (2018) 409 ITR 609.
2) Heubach Colour (P) Ltd. v. Assistant Commissioner of Income-tax reported in (2024) 167 taxmann.com 126 (Gujarat). Page 9 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025
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3) Deepakbhai Ramjibhai Patel v. Income Tax officer reported in (2014) 366 ITR 134.
4) Cliantha Research Ltd. v. Deputy Commissioner of Income-tax, Ahmedabad Circle-I reported in (2013) 35 taxmann.com 61 (Gujarat).
5) Shahlon Silk Industries (P) Ltd. v. Assistant Commissioner of Income tax reported in (2023) 146 taxmann.com 194 (Gujarat).
6) Kiritbhai Parshottambhai Patel v. Assistant Commissioner of Income Tax reported in (2024) 166 taxmann.com 594 (Gujarat).
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7) General Motors India (P) Ltd v. Deputy Commissioner of Income tax reported in (2013) 354 ITR 244 (Gujarat).
8) Gujarat Ambuja Exports ltd. v. Assistant Commissioner of Income-tax reported in (2021) 129 taxmann.com 258 (Gujarat).
9) Sun-n-Sand Hotels (P) Ltd. v. Additional/Joint/Deputy Assistant Commissioner of Income-tax/ Income-tax Officer, National Faceless Assessment Centre, Delhi reported in (2022) 139 taxmann.com 403 (Bombay).
10) Facets Gems Polishing Works (P) Ltd v. Deputy Commissioner of Income Tax reported in (2024) 164 taxmann.com 192 (Gujarat). Page 11 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025
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19. It was further submitted that the decision in case of Praful Chunilal Patel v. M.J. Makwana/ Assistant Commissioner of Income Tax reported in (1999) 236 ITR 832 (Guj.), would not applicable in facts of the case as the petitioner has already submitted the reply to the query raised during the course of regular assessment to the specific questions put to the assessee by the Assessing Officer and after considering such reply, the assessment was framed under section 143(3) of the Act and therefore, the Assessing Officer could not have assumed jurisdiction to issue the impugned notice for reassessment on mere change of opinion. Reliance was also placed on the decision of Hon'ble Apex Court in case of Commissioner of Income- Page 12 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025
NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined tax, Delhi v. Kelvinator of India Ltd reported in (2010) 320 ITR 561.
20. It was further submitted that change of opinion is also not permissible even in case of audit objection. Reliance was placed on the decision of following two decisions of Bombay High Court:
i) Shri Dilip Laximan Powar v. Income-tax Officer reported in (2024) 167 taxmann.com 109 (Bombay).
ii) Hasmukh Estates (P) Ltd. reported in 459 ITR 524 (Bombay).
21. Learned advocate Mr. B.S. Soparkar also referred to and relied upon the decision of the Hon'ble Apex Court in case Page 13 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined of Indian and Eastern Newspaper Society v. Commissioner of Income-tax, New Delhi reported in (1979) 119 ITR 996 to contend that when the Assessing Officer has considered the material during the original assessment and thereafter it is noticed that an error is committed in consequence of which income has escaped assessment, it is not open to the Assessing Officer to reopen the assessment.
22. It was therefore, submitted that the impugned notice under section 148A(b) and order passed under section 148A(d) of the Act as well as notice under section 148 of the Act may be quashed and set aside.
23. On the other hand, learned advocate Page 14 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined Ms. Maithili D. Mehta for the respondent submitted that mere providing information by the petitioner in response to the query raised by the respondent Assessing Officer is not enough.
24. It was further pointed out that the petitioner has failed to deduct TDS on the fees for balance amount of various fees amounting to Rs. 16.20 crore at the rate of 30% which amounts to Rs.4,86,04,504/- which is required to be disallowed under section 40(a)(ia) of the Act.
25. It was further submitted that even for deduction claimed under section 80IC of the Act, the petitioner has not reduced the loss of previous year from the income of the current year as per the provisions Page 15 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined of sub-section(7) of section 80IC read with sub-section (5) of section 80IA of the Act and even the Form 10CCB filed by the petitioner is erroneous resulting into the escapement of income. It was further submitted that the respondent Assessing Officer has formed a prima facie opinion that there is escapement of income on the basis of information made available to him and after considering the reply filed by the petitioner, has come to the conclusion that it is a fit case to reopen the assessment and therefore, no interference is called for while exercising extraordinary jurisdiction under Article 226 of the Constitution of India.
26. Considering the submissions made by learned advocates for the respective Page 16 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined parties and on perusal of the material available on record, it appears that during the course of regular assessment, the Assessing Officer has taken into consideration the exhaustive details submitted by the petitioner.
27. On perusal of the documents available on record, we are of the prima facie opinion that the petitioner has made available all the material including the details of TDS during the year under consideration. It appears that the petitioner has mentioned various provisions under which the tax was deducted, however, the respondent Assessing Officer has only considered the deduction for advertisement and sales promotion and legal and professional fees Page 17 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined whereas the petitioner has deducted tax from salary, interest, commission paid to the contractors, rent, sale of scrap etc. It also appears from the record that there is no infirmity in the tax deducted at source by the petitioner and merely considering the partial information, the respondent has come to the conclusion that there is failure on part of the petitioner to deduct tax at source.
28. With regard to deduction under section 80IC of the Act also, the petitioner has replied to the query raised during the course of regular assessment and thereafter, assessment was framed and subsequently, if it is found that if the petitioner has not claimed correct deduction by not reducing the loss of Page 18 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined earlier year, same cannot be considered as an information resulting into escapement of income as the petitioner had already disclosed the facts in response to the query raised during the course of the regular assessment.
29. Therefore, even when the notice under section 148 is issued after 01.04.2021, the respondent Assessing Officer could not have assumed the jurisdiction to reopen the assessment on mere change of opinion, while exercising power to reopen the assessment by the respondent Assessing Officer under section 147 of the Act, subject to the provision of sections 148 to 153 of the Act.
30. On perusal of the provisions of section 147 of the Act, assessment or Page 19 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined reassessment can be undertaken by the Assessing Officer if there is escapement of taxable income and for that purpose, the proviso to section 148 provides that no notice shall be issued if information leading to escapement of income is not available with the Assessing Officer but converse is not true that all information available with the Assessing Officer would lead to issuance of notice for reopening more particularly, when the issue which is already considered during the assessment proceedings and thereafter, assessment order is passed under the provisions of section 143(3) of the Act. Any information subsequent thereto which may be resulting into escapement of income would amount to reviewing the assessment order.
31. The Hon'ble Apex Court in case of Page 20 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined Kelvinator of India Ltd (320 ITR 561) has categorically held that reopening is not equivalent to review of the assessment order.
32. The Hon'ble Bombay High Court in case of Hexaware Technologies Limited v. Assistant Commissioner of Income Tax and others reported in (2024) 464 ITR 430 (BOM) has held as under:
"43 In Siemens Financial Services (P.) Ltd. [(2023) 457 ITR 647(Bom)] in paragraphs 35 to 39 the Court held as under :
35. During the course of assessment proceedings, notice had been issued to petitioner. In reply to the notice under Section 143(2), petitioner had by its letter dated 6th December 2018 recorded, "..... based upon our discussion during the course of the hearing....". The transaction wise summary of the software consumable was made available.
This was considered during the assessment proceedings and the Page 21 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined assessment order accepting revised return came to be passed.
36. We would agree with the submissions of Mr. Pardiwalla that if change of opinion concept is given a go by, that would result in giving arbitrary powers to the Assessing Officer to reopen the assessments. It would in effect be giving power to review which he does not possess. The Assessing Officer has only power to reassess not to review. If the concept of change of opinion is removed as contended on behalf of the Revenue, then in the garb of re-opening the assessment, review would take place. The concept of change of opinion is an in-built test to check abuse of power by the Assessing Officer. As held in Dr. Mathew Cherian (2023) 450 ITR 568(Mad), whether under old or new regime of reassessment, it is settled position that the issues decided categorically should not be revisited in the guise of reassessment. That would include issues where query have been raised during the assessment and query have been answered and accepted by the Assessing Officer while passing the assessment order. As held in Aroni Commercials (2014) 362 ITR 403 (BOM) even if assessment order has not specifically dealt with that Page 22 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined issue, once the query is raised it is deemed to have been considered and the explanation accepted by the Assessing officer. It is not necessary that an assessment order should contain reference and/or discussion to disclose his satisfaction in respect of the query raised....
37. The Assessing Officer does not have any power to review his own assessment when during the original assessment petitioner provided all the relevant information which was considered by him before passing the assessment order under section 143(3) of the Act dated 23 rd December 2018. Petitioner had debited an amount of Rs.6,41,87,931/- on account of software consumables in the profit and loss account and a detailed break-up of the said expenses were submitted before the Assessing Officer during the course of assessment proceedings vide a letter dated 6 th December 2018. It is settled law that proceedings under section 148 cannot be initiated to review the earlier stand adopted by the Assessing Officer. The Assessing Officer cannot initiate reassessment proceedings to have a relook at the documents that were filed and considered by him in the original Page 23 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined assessment proceedings as the power to reassess cannot be exercised to review an assessment. In petitioner's case the Assessing Officer having allowed the amount of software consumables as a revenue expenditure now seeks to treat the same as capital expenditure which is a clear change of opinion. Various judicial precedents have held that reassessment proceedings initiated on the basis of a mere change of opinion are invalid and without jurisdiction.
38. The Apex Court in Kelvinator of India Ltd.(320 ITR 561) emphasised on the difference between a power to review and the power to reassess. The Apex Court held that the Assessing Officer has no power to review but has only the power to reassess. The concept of 'change of opinion' must be treated as an in-built test to check abuse of power by the Assessing Officer. The relevant extract of the judgment is reproduced as under :-
".......However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, section 147 would give arbitrary powers to the Assessing Officer to re-open Page 24 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined assessments on the basis of "mere change of opinion", which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to re- assess. The Assessing Officer has no power to review; he has the power to reassess. But reassessment has to be based on fulfillment of certain pre- condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of "change of opinion"
as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1-4-1989 , Assessing Officer has power to reopen, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to section 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987 , Parliament not only deleted the words "reason to believe" but also inserted the word "opinion" in section 147 of the Act. However, on receipt of representations from Page 25 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined the Companies against omission of the words "reason to believe", Parliament re-introduced the said expression and deleted the word "opinion" on the ground that it would vest arbitrary powers in the Assessing Officer............."
39. The Delhi High Court in Seema Gupta v. ITO (2023) 457 ITR 642 (Delhi) held that the order under section 148A(d) and notice under section 148 of the Act should be set aside when the reassessment was initiated on a change of opinion where the same was discussed and verified by the Assessing Officer at the time of original assessment proceedings. 43.1 Therefore, the concept of change of opinion being an in- built test to check abuse of power by the Assessing Officer and the Assessing Officer having allowed the claim of deduction under Section 80JJAA of the Act in the assessment order dated 13th November 2017, now to disallow the same is based on a clear change of opinion. Reassessment proceedings initiated on the basis of a mere change of opinion is invalid and without jurisdiction. On this ground also the impugned notice issued under Section 148 of the Act has to be quashed and set Page 26 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined aside."
33. The Hon'ble Apex Court in case of Indian and Eastern Newspaper Society (supra) while dealing with audit objection had also occasion to consider as to whether material already considered would amount to change of opinion or not. In that context it was held as under:
"Now, in the case before us, the Income Tax officer had, when he made the original assessment, considered the provisions of sections 9 and 10. Any different view taken by him afterwards on the application of those provisions would amount to a change of opinion of material already considered by him. The Revenue contends that it is open to him to do so, and on that basis to reopen the assessment under section 147(b). Reliance is placed on Kalyanji Mavji & Co. v. Commissioner of Income Tax(1976) 102 ITR 287(SC), where a Bench of two learned Judges of this Court observed that a case where income had escaped assessment due to the "oversight, inadvertence or mistake" of the Income Tax officer must fall within section 34(1) (b) of the Indian Income Tax Act, 1922. It appears to us, with Page 27 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined respect, that the proposition is stated too widely and travels farther than the statute warrants in so far as it can be said to lay down that if, on reappraising the material considered by him during the original assessment, the Income Tax officer discovers that he has committed an error in consequence of which income has escaped assessment it is open to him to reopen the assessment. In our opinion, an error discovered on a reconsideration of the same material (and not more) does not give him that power. That was the view taken by this Court in Maharaj Kamal Singh v. Commissioner of Income Tax (1959) 35 ITR 1(SC), Commissioner of Income Tax v. Raman and Company (1968) 67 ITR 11(SC) and Bankipur Club Ltd. v. Commissioner of Income Tax.(1971) 82 ITR 831(SC) and we do not believe that the law has since taken a different course. Any observations in Kalyanji Mavji & Co. v Commissioner of Income Tax (1976) 102 ITR 287(SC) suggesting the contrary do not, we say with respect, lay down the correct law."
34. In view of above conspectus of law, the law has not changed even after the amendment of the provisions of section 147 and section 148 and introduction of procedural provision of section 148A in Page 28 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025 NEUTRAL CITATION C/SCA/8373/2022 JUDGMENT DATED: 18/03/2025 undefined the statute. The concept of change of opinion has remained constant for the purpose of reopening of the assessment as the reopening or reassessment is not review of the assessment already done.
35. In that view of the matter merely because there is an escapement of income by not deducting the loss of earlier year for computation of deduction under section 80IC of the Act would amount to mere change of opinion as the said issue was already considered by the Assessing Officer in the regular assessment proceedings. Therefore, in any view of the matter, the Assessing Officer could not have assumed the jurisdiction to reopen the assessment for the year under consideration.
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36. The petition therefore, succeeds. The notice issued under section 148A(b) of the Income Tax Act, 1961 (for short "the Act") dated 21.03.2022, order dated 07.04.2022 passed under section 148A(d) of the Act and notice dated 07.04.2022 under section 148 of the Act are quashed and set aide.
37. Rule is made absolute to the aforesaid extent with no order as to costs.
(BHARGAV D. KARIA, J) (D.N.RAY,J) RAGHUNATH R NAIR Page 30 of 30 Uploaded by RAGHUNATH R NAIR(HC00196) on Fri Mar 28 2025 Downloaded on : Fri Mar 28 23:47:33 IST 2025