INCOME TAX ACT, 1961

Section 261 Section 148

Appeal (Supreme Court) - Special leave petition - Reassessment - Notice under section 148 issued within four years--Validity--Non-discussion of issue in assessment order, though the query was raised

Department preferred SLP to appeal against the judgment of Bombay High Court in Marico Ltd. v. Asstt. CIT-12 (3) (2) & Ors. [Writ Petition No. 1917 of 2019, dt. 21-8-2019] : 2019 TaxPub(DT) 5641 (Bom-HC), whereby 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. Held: In the present matter, the assessment order was passed on 30-1-2018 as regards the assessment year 2014-15. According to the record, certain queries were raised by the AO on 25-9-2017 during the assessment proceedings which were responded to by the assessee vide Letters, dated 10-10-2017 and 21-12-2017. After considering said responses, the assessment order was passed on 30-1-2018. Subsequently, by Notice dated 27-3-2019 issued under section 148 of the Income Tax Act, the matter was sought to be re-opened. While accepting the challenge to the issuance of notice, the High Court in para 12 of its judgment observed as under : ' Thus we find that the reasons in support of the impugned notice is the very issue in respect of which the AO has raised the Query, dated 25-9-2017 during the assessment proceedings and the Petitioner had responded to the same by its Letters, dated 10-12-2017 and 21-12-2017 justifying its stand. The non-rejection of the explanation in the Assessment Order would amount to the AO accepting the view of the assessee, thus taking a view/forming an opinion. Therefore, in these circumstances, the reasons in support of the impugned notice proceed on a mere change of opinion and therefore would be completely without jurisdiction in the present facts. Accordingly, the Impugned Notice, dated 27-3-2019 was quashed and set aside. In the circumstances, the court found no reason to interfere in the matter. The leave petition was accordingly dismissed.

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