An assessment order passed by an Assessing Officer can be rectified or amended under Section 154 or Section 155 or reopened under Section 148 only by him, and by no other income-tax authority. Similarly, an assessment by way of settlement of a case, which is made by the (Income Tax Settlement Commission) ITSC, can be reopened only by the ITSC and that too only in certain circumstances. Applying this general principle that runs through the Act, an assessment by way of a settlement order passed by the ITSC cannot be reopened by a different authority, viz., the Assessing Officer.
The fact that the ITSC has not been designated as an “income-tax authority” under Section 116 of the Act makes the position „a fortiori‟. Section 147 of the Act does not employ language that permits him to do so, nor are the powers and orders of the ITSC made subject to the provisions of Section 147. Section 147 does not appear to fit into the general scheme of Chapter XIX-A, which has been held to be a self contained code by the Supreme Court in Brij Lal and Ors. v. CIT, Jalandhar, (2010) 328 ITR 477 (SC).
HIGH COURT OF DELHI
Date of Decision. 13th July, 2012
+ W.P. (C) No.7975/2011
M/S OMAXE LTD.
Versus
ASSTT. COMMISSIONER OF INCOME TAX AND ANR.
ORDER
1. This writ petition under Article 226/ 227 of the Constitution of India has been filed by M/s. Omaxe Limited, the petitioner herein, with the prayer to quash the notice dated 30.06.2010 issued by the respondent No.1 who is the Assistant Commissioner of Income Tax, Central Circle-4, New Delhi, under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the „Act‟) and the proceedings initiated pursuant to the notice including the order dated 03.10.2011 passed by him dismissing the petitioner‟s objections to the reopening of the assessment.
2. C.M. Application No. 19469/2011 was thereafter filed seeking amendment of the writ petition by adding certain grounds as well as prayer for issuance of a writ quashing the order dated 08.11.2011 passed by the respondent in the meantime under Section 147 read with Section 143(3) of the Act. The amended writ petition was taken on record by order dated 09.01.2012.
3. The brief facts giving rise to the filing of the writ petition may now be noted. The petitioner is a public limited company engaged in the business of real estate. It is assessed to income tax by the first respondent and falls under the administrative charge of the second respondent who is the CIT (Central)-III, New Delhi. On 22.09.2005 a search was carried out in the business premises of the petitioner under Section 132 of the Act. Thereafter the petitioner filed a return of income for the assessment year 2006- 07 on 30.11.2006 declaring taxable income of `89,20,76,630/-. In the return, the petitioner claimed deduction of `78,99,00,509/- under Section 80IB (10) of the Act in respect of the profits of the housing projects undertaken by the petitioner. In the meantime the first respondent had issued notice on 19.04.2006 under Section 153A of the Act for the assessment years 2000-01 to 2005-06 and in response to those notices, the petitioner filed returns of income on 30.05.2007. In respect of the assessment year 2006-07 which is under consideration, the Assessing Officer issued inquiry notices under Section 142(1) and Section 143(2) of the Act along with detailed questionnaire. These notices were issued on 12.07.2007. Before the issue of such notices, the petitioner filed an application before the Income Tax Settlement Commission („ITSC‟ for short) under Section 245C (1) of the Act on 31.05.2007. It was a consolidated application for settlement of the petitioner‟s income tax cases for the 7 assessment years, namely, assessment years 2000-01 to 2006-07. In this application the petitioner declared an aggregate additional income of `18.25 crores including additional income of `18,00,000/- for the assessment year 2006-07.
4. It would appear that the settlement application was allowed to be proceeded with by the ITSC and after considering the application, the report of the CIT and other materials, a final order of settlement was passed on 17.03.2008 under Section 245D (4) of the Act. In the final order the ITSC computed the total income of the petitioner as follows: –
