Case Law Details
JM Financial Asset Management Limited Vs DCIT (ITAT Mumbai)
Assessing Officer is only entitled to reopen the assessment, but he cannot review an assessment in the sense that there cannot be a rethinking or different opinion on the same material, which was the subject matter of the original assessment proceedings. Thus, bearing these principles in mind, if we examine the case on hand, we need to scrutinize as to whether the reopening was a change of opinion and was there any attempt to review the original order of assessment. There cannot be adjudication into the merits or roving enquiry into the merits of the assessment to come to a conclusion as to whether the reopening was justified or not. Prima facie, the Assessing Officer should be able to establish that the reopening of assessment was not on account of change of opinion, be it within four years or beyond four years.
When a regular order of assessment was passed under section 143(3) of the Act, a presumption could be raised that such an order had been passed on application of mind and if it was to be held that an order, which had been passed purportedly without application of mind would itself confer jurisdiction upon the Assessing Officer to reopen the proceeding without anything further, the same would amount to giving premium to the Authority exercising quasi-judicial function to take benefit of his own wrong. If such is the position, in the absence of any allegation that there was any fresh material to come to a conclusion that income escaped assessment, the Assessing Officer cannot now take a stand that the claim made by the assessee under section 37 of the Act, which was acceded to by the Assessing Officer, was incorrect and the expenditure is not allowable. If this is the observation and reason for reopening, it would be a clear case of change of opinion. What the Assessing Officer purported to do is to review his earlier decision.
As held by the Hon’ble Supreme Court, in a plethora of judgements, it is not for the assessee to tell as to how the Assessing Officer has to complete the assessment. The duty of the assessee is to make a full and true disclosure of all materials. If the assessee is put on notice calling for additional materials, the assessee is duty bound to fully and truly disclose all materials and thereafter, it is for the Assessing Officer to take a call on the materials. We are satisfied that whatever be the concern, it was to be traced in the assessment under section 143(3) of the Act, the details in the understanding of the Assessing Officer were called for and the details were placed by the assessee and thereafter, the assessment has been completed. Therefore, we find that the reopening was wholly without jurisdiction.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
Please become a Premium member. If you are already a Premium member, login here to access the full content.
