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The Author in this article discusses the differing views taken by two high courts (exactly opposing views) on the question of limitation as to whether proceedings for AY 2013-14 and AY 2014-15 can be re-opened by issuing notice u/s 148 (deemed to be 148(b) of the Income Tax Act, 1961 [the ITA] from 01-Apr-2021 to 30-Jun-2021. (the Specified Period)).
Bombay High Court held that in absence of any fresh tangible material and simply attempting to re-visit and reconsider the decision which was rendered in earlier regular assessment proceedings is nothing but a change of opinion and hence reopening unsustainable.
As per the Finance Act 2021, the re-assessment notice can only be issued to an assessee under Section 148 of the Act when there is an information with the jurisdictional Assessing Officer which suggests that the income chargeable to tax has escaped assessment in the case of the assessee for the relevant Assessment Year with the prior approval of the specified authority under Section 151 to issue such notice.
Bombay High Court held that in the present case there is full and true disclosure on the part of the petitioner. Reopening of assessment, on the ground that another director of the same company has disclosed the income differently is evidently a change of opinion and unsustainable in law.
Bombay High Court held that as between the date of the orders of assessment sought to be reopened and the date of forming of opinion by the Income-tax Officer nothing new has happened i.e. there is no change in law, no new material came on record and no new information has been received. Hence reopening proceedings was just change of opinion accordingly the same is unsustainable in law.
Bombay High Court held that failure on the part of the assessee is a prerequisite for invoking jurisdiction for reopening of assessment. In absence of the same, reopening of assessment is unsustainable and liable to be set aside.
Reopening notice was issued without any tangible material. Mere change of opinion not provide jurisdiction to Revenue to re-open assessment.
Bombay High Court held that reopening of assessment on the basis of change of opinion without reasons to indicate failure on the part of the petitioner to disclose truly and fully all the material facts is untenable in law.
Bombay High Court held that assessment order was passed after post considering the submission from the assessee regarding deduction under section 80P. Hence, reopening of assessment in absence of any new tangible material is unsustainable in law.
Keenara Industries Private Limited Vs ITO (Gujarat High Court) HC held that substituted provisions of sections 147 to 151 shall be applicable w.e.f. 01.04.2021, and as per First Proviso to Section 149, limitation as specified under unamended provision as it stood prior to 01.04.2021, shall be applicable. As per unamended provision prescribing limitation, no notice can […]
