| COURT: | Delhi High Court |
| CORAM: | S. Muralidhar J, Vibhu Bakhru J |
| SECTION(S): | 147, 148 |
| GENRE: | |
| CATCH WORDS: | Reopening |
| COUNSEL: | Salil Kapoor |
| DATE: | October 9, 2015 (Date of pronouncement) |
| DATE: | October 13, 2015 (Date of publication) |
| AY: | 2002-03 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 147: Laid laid down in ALA Firm v. CIT 189 ITR 285 (SC) does not mean that an assessment can be reopened merely because the AO omitted to apply a binding judgement | |
The only reason for reopening the assessment was that the decision in Southern Switchgears Ltd. v. CIT 232 ITR 359 was omitted to be applied by the AO while making the assessment. The department placed reliance on the decision of the Supreme Court in ALA Firm v. CIT (1991) 189 ITR 285 (SC) to urge that in similar circumstances where the AO had overlooked a binding precedent on the issue, it was construed as a sufficient material to justify reopening of the assessment. HELD by the High Court:
(i) There are at least two reasons why the decision in ALA Firm (supra) would not be applicable in the facts of the present case. In the first place, it is apparent that the said decision was not in the context of reopening of assessment sought to be made four years after the expiry of the relevant assessment year of the original assessment. The reopening was done not very long after the initial assessment. Secondly, the decision was rendered in respect of Section 147 of the Act as it stood prior to its amendment with effect from 1st April 1989.
(ii) In light of the legal position after the amendment to Section 147 of the Act, as explained in CIT v. Kelvinator of India Ltd. (supra), the Court is of the view that, in a case where the assessment is sought to be reopened in 2009, four years after it was originally made, i.e. 2005, the mere fact that there was a judgment of the Supreme Court of 1997 which was not noticed by the AO when he framed the original assessment cannot per se constitute the only material on the basis of which the assessment could have been reopened. When on the same material, four years after the assessment year for which the original assessment is finalised, the AO seeks to reopen the assessment on the basis of a judicial precedent delivered more than eight years earlier, it would be a case of mere ‘change of opinion’, something clearly held impermissible by CIT v. Kelvinator of India Ltd. (supra), The threshold requirement of that the AO should, on the basis of some tangible material, conclude that there was escapement of income on account of the Assessee failing to disclose material particulars, is not fulfilled in the present case. Consequently, the reopening of the assessment was, in the facts of the present case, not justified.
Some of the range heads are directing to initiate action u/s 147 in cases where the quasi-judicial review u/s 263 were taken and the finality reached. Such range heads are not empowered to make suggestions like these. However, in one such cases, the range head directed the AO to initiate action u/s 147 which was more than 4 years old and the charge Commissioner had accorded to permission to reopen. The CIT (A) confirmed the re-assessment. The ITAT after discussion the issues threadbare had cancelled the issue of notice u/s 148. That means the authorities do not care for the judicial pronouncements of even Supreme Court but they resort to so called remedial actions are initiated. Surprisingly the CBDT had approved charge sheets in such illegally reopened assessments.