Case Law Details
S.R. Batliboi & Co. Vs ACIT (Calcutta High Court)
Kelvinator of India Ltd. (supra) has held that, after April 1, 1989 the assessing officer invoking the provisions of Section 147 of the Act of 1961 must have tangible material to come to the conclusion that, there was escapement of income from assessment. Reasons must have a live link with the formation of the belief. In the facts of the present case, the assessing officer had a tax audit report which disclosed the deductions claimed by the petitioner. It had shown, in the tax audit report that, the employee’s contributions of provident fund for the month of June 2006 was paid in the month of August 2006. Since the payment was made within the time period for filing an annual return under Section 139(1) of the Act of 1961, it cannot be said that there was any delay on the part of the petitioner to claim the deduction. Moreover, there was no new material before the assessing officer to form an opinion under Section 147 of the Act of 1961. In such view, the impugned notice dated April 20, 2011 is quashed.
FULL TEXT OF THE HIGH COURT JUDGMENT
1. The petitioner has assailed a notice dated April 20, 2011 issued under Section 148 of the Income Tax Act, 1961 for initiating proceedings under Section 147 of the Act of 1961 in respect of assessment year 2007-2008.
2. Learned Senior Advocate for the petitioner has submitted, the reasons disclosed by the authorities for invoking Section 147 of the Act of 1961, are specious. It is in the nature of the assessing officer reviewing an order of assessment. Review of an order of assessment by the assessing officer is not permissible under Section 147 of the Act of 1961. He submits that, the assessing officer is not entitled to change his views from that expressed in the order of assessment under Section 147 of the Act, 1961. The petitioner, as employer had time to deposit of employees’ portion of the Provident Fund within the time limit for the purpose of filing the Income Tax Return. Such due date has been fixed with retrospective effect by incorporating necessary amendments in Section 43 (B) of the Income Tax Act, 1961. In the month of June, 2006, there was about 20 days’ so called delay in payment. The payment was made within the time limit for filing the Income Tax Return. Therefore, such payment was made within due date permitting the petitioner to claim allowance under Section 43(B) of the Act, 1961. The Assessing Officer had such material before him while passing the order of assessment. It is not a case of suppression of material fact by the petitioner. It is also not a case where, the department has received new materials to suggest that, income has escaped assessment. He submits that, the petitioner had replied the notice under Section 148 of the Act, 1961. Such objection was disposed of by a writing dated January 11, 2013. Such writing refers to the tax audit report which was available to the assessing officer at the time of passing the order of assessment. No query with regard to the alleged default under Section 43(b) of the Act, 1961 was raised by the assessing officer. Therefore, the assessing officer did not have the requisite jurisdictional fact before it to invoke the provisions of section 147 of the Act of 1961. He has relied upon CIT v. Sabari Enterprises [2008] 298 ITR 141 (Kar.), CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561 (SC), CIT v. Vijay Shree Ltd. [2014] and CIT v. Alom Extrusions Ltd. [2009]319 ITR 306 (SC) in support of his contentions.
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