Inductotherm (India) Pvt. Ltd vs. DCIT (Gujarat High Court)

DATE: (Date of pronouncement)
DATE: August 23, 2012 (Date of publication)

Click here to download the judgement (inductotherm_143_1_reopening.pdf)

S. 143(1) intimation cannot be reopened u/s 147 in absence of “tangible material”

For AY 2002-03, the AO issued an Intimation u/s 143(1) accepting the return. Subsequently, based on objections raised by the audit, he issued a s. 148 notice to reopen the assessment. The AO set out four issues in the recorded reasons and for two he stated that the reopening was to “verify” the expenditure. The assessee filed a Writ Petition to challenge the reopening inter alia on the ground that there was no reason to believe that income had escaped assessment. HELD by the High Court:

Even in a case where only a s. 143(1) Intimation is passed, the power to reopen can be exercised only where there is “reason to believe that income has escaped assessment” and not merely to “scrutinize” the return or “verify” the expenditure. Further, even in case of reopening of an assessment which was previously accepted u/s 143(1) without scrutiny, the AO would have power to reopen the assessment, provided he had some tangible material on the basis of which he could form a reason to believe that income chargeable to tax had escaped assessment. Such reason to believe need not necessarily be a firm final decision of the AO. This safeguard is necessary to prevent arbitrary exercise of powers u/s 147 to circumvent the scrutiny proceedings which could not be framed in view of notice u/s 143(2) having become time barred. On facts, in respect of two issues, the AO reopened the assessment to verify the claims. For mere verification of the claim, power of reopening of assessment cannot be exercised. The AO in the guise of power to reopen an assessment cannot seek to undertake a fishing or roving inquiry and seek to verify the claims as if it were a scrutiny assessment.

Note: The Petition was ultimately dismissed because for the other two issues, there was material to justify the reopening.

For more on reopening of s. 143(1) Intimation see Telco Dadajee Dhackjee (ITAT Mumbai Third Member)

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