| The Tax Publishers2019 TaxPub(DT) 5641 (Bom-HC) : (2019) 311 CTR 0865 INCOME TAX ACT, 1961
Section 148
When queries raised during the assessment proceedings were responded by the assessee, then non-discussion of the same or non-rejection of the response of the assessee would necessarily mean that AO had formed an opinion accepting the view of assessee. Thus, an opinion formed during the regular assessment proceedings, bars the AO to reopen the same only on account of a different view. Therefore, the reasons in support of reopening notice proceed on a mere change of opinion and hence would be completely without jurisdiction. Thus, reopening notice was quashed.
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Reassessment - Notice under section 148 issued within four years - Validity - Non-discussion of issue in assessment order, though the query was raised
In the course of regular assessment proceedings, AO had issued notice to the assessee to show cause why the amount claimed as depreciation on intangibles should not be disallowed to determine book profits under section 115JB. The said query of AO was responded by the assessee in great detail. Thereafter, AO passed an assessment order under section 143(3) without making disallowance of depreciation. Instant appeal was filed by the assessee against the reopening notice issued by AO. Held: Since the queries pertaining to disallowance of depreciation on intangibles should while determining book profits under section 115JB have been raised during the assessment proceedings and the assessee had responded to the same, therefore non-discussion of same or non-rejection of the response of assessee would necessarily mean that AO had formed an opinion accepting the view of assessee. Thus an opinion formed during the regular assessment proceedings, bars the AO to reopen the same only on account of a different view. Therefore, the reasons in support of reopening notice proceed on a mere change of opinion and hence would be completely without jurisdiction. Thus, the reopening notice was quashed.
REFERRED : CIT v. M/s. Kelvinator of India Ltd. (2010) 320 ITR 561 (SC) : 2010 TaxPub(DT) 1335 (SC),GKN Sinter Metals Ltd. v. Asstt. CIT & Ors. (2015) 371 ITR 225 (Bom) : 2015 TaxPub(DT) 0543 (Bom-HC),Aroni Commercials Ltd. v. Asstt. CIT & Anr. (2014) 367 ITR 405 (Bom) : 2014 TaxPub(DT) 3344 (Bom-HC),CIT v. Sain Processing and Weaving Mills (P) Ltd. (2010) 221 CTR 493 (Del) : 2010 TaxPub(DT) 0280 (Del-HC),Idea Cellular Ltd. v. Dy. CIT (2008) 301 ITR 407 (Bom) : 2008 TaxPub(DT) 1640 (Bom-HC),CIT v. Nirma Chemicals Works (P) Ltd. (2009) 309 ITR 67 (Guj) : 2009 TaxPub(DT) 0308 (Guj-HC)
FAVOUR : In assessee's favour
A.Y. : 2014-15
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