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In our considered opinion, the notice issued under section 148 of the Act is nothing but mere change of opinion. The issues which have already been considered in the original assessment cannot be reappreciated in reassessment proceedings under the garb of income escaping assessment. If the Assessing Officer has not given any finding after considering the evidence on record, it cannot be said that the income had escaped assessment on account of concealment of income of the assessee.
The assessee disclosed capital gain and claimed exemption under section 54F on the ground that entire sale proceeds were invested in construction of house property. In the original assessment proceedings, the Assessing Officer, denied exemption on ground that construction of house property was complete before the date of transfer of shares.
Insofar as the other assessment years are concerned where the issue of limitation of four years does not arise, the position would not be any different. This would be so because on a reasonable interpretation of the provisions of section 80-IC(2) read with serial No. 20 of the 13th schedule of the said Act read with the first schedule to the Central Excise Tariff Act, 1985
In the present case the Tribunal found that the DVO’s report is based on his opinion, and not on any material, which could form the basis of reopening of the cases, and thus it can at best be treated as an information, which will not be sufficient material for recording ‘reason to believe’ to proceed in the matter. The opinion of the DVO, as to what would be reasonable percentage of architects fees and the supervision charges by the Directors, would not constitute tangible material for exercising powers of reopening the assessment.
The contention of the counsel for the petitioner that the reopening of the assessments was prompted by the opinion which the respondent formed while framing the assessment for assessment year 2007-08 that the licence fee payment was not an allowable deduction, cannot be accepted because, as we have observed earlier though the genesis of the issue can be traced to the assessment proceedings for the assessment year 2007-08, the reasons recorded show that the assessing officer took proceedings under Section 147 on the ground that the licence agreement was not filed by the petitioner in the original assessment proceedings. When there is a failure on the part of the petitioner to furnish the primary facts, it is futile to examine the question whether the re-assessment was prompted by a change of opinion based on the view which the assessing officer took in subsequent assessment proceedings.
Whether the Income-tax Appellate Tribunal was right in law in coming to the conclusion that when on the ground on which the reopening of assessment is based, no additions are made by the Assessing Officer in the order of assessment, he cannot make additions on some other grounds which did not form part of the reasons recorded by him.
The CBDT, through its circular, could have brought certain aspects to the notice of the Assessing Officer, insofar as assessment was concerned. It had to be the opinion of the Assessing Officer alone which would prevail. In that view of the matter, the circular of CBDT may be a trigger, on the basis of which, the Assessing Officer may himself be satisfied that income chargeable to tax in a given case had escaped assessment.
One has to keep in mind the fact that while reopening of an assessment cannot be asked for by the assessee on the ground that it had not furnished Form No. 10 during the original assessment proceedings, this does not mean that when the revenue reopens the assessment by invoking section 147, the assessee would be remediless and would be barred from furnishing Form No. 10 during those assessment proceedings. Therefore, Form No. 10 could be furnished by the assessee-trust during the reassessment proceedings.
The assessment record reveals that the MLA had been placed on the record of the Assessing Officer in the very first instance when the assessment was completed under section 143(3). Thereafter the reassessment proceedings were initiated for those proceedings too and what drove the revenue to issue notice and reopen the proceedings was the master licensing agreement and the nature of ‘royalty income’. The Assessing Officer in that instance consciously after going through the material concluded that the rate of taxation was 15 per cent in the reassessment proceedings.
In the present case, the impugned reasons behind the notice dated 28.03.2012, which we have extracted above, does not even carry a whisper that there has been a failure on the part of the assessee to fully and truly disclose all material facts necessary for the assessment. Even the order rejecting the objections does not indicate as to what material fact has not been disclosed by the assessee.
