2017 Supreme(Guj) 522

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M.R. Shah and B.N. Karia, JJ.
Seabird Marine Service Pvt. Ltd. – Appellant
Vs.
Assistant Commissioner of Income Tax – Respondent
Special Civil Application Nos. 925 of 2013 and 3005 of 2014
Decided On : 08-03-2017

Headnote:

Income-tax Act, 1961 -Section 148 -Petitions are heard together and disposed of by this common judgment and order. Civil Application No. 925 of 2013 has been preferred by the petitioner-assessee for quashing and setting aside the impugned Notice issued by the respondent by which the Assessing Officer has sought to reopen the assessment for Assessment alleging inter alia that the income chargeable to tax has escaped the assessment for the year under consideration. Special Civil Application No. 3005 of 2014 has been preferred by the very petitioner of Special Civil Application No. 925 of 2013 for issuance of appropriate direction quashing and setting aside the impugned Notice issued by the respondent under Section 148 of the Act by which the Assessing Officer on the very ground has sought to reopen the assessment for Assessment alleging inter alia that the income liable to tax for Assessment has escaped the assessment. leading to filing of writ petitions, in nutshell, are as under:- the petitioner-assessee is in the business of owning and operating Container Freight Station [hereinafter referred to as, "the CFS"]. It has established CFS. That petitioner-assessees application for setting up of a CFS was approved by the Ministry of Commerce & Industries vide letter . According to the petitioner-assessee, even the Commissioner of Customs [Exports], vide Notification No. 5 : had notified the area of the petitioner-assessee as customs area for the purpose of storage, stuffing/de-stuffing and clearance of export/import of goods through the concerned Port. assessee filed its return of income for Assessment declaring total income at Rs. Nil, after claiming deduction under Section 80IA [4] of the Act of Rs. 88,63,833/-. The assessee paid the tax under Section 115JB of the Act at the rate of 7.5% of the Book Profit of Rs. 4,56,48,348/-. The assessee also produced books of account, as audited as well as a Certificate in Form 10CCB, alongwith the return of income. The case of the assessee was selected for scrutiny. That, after considering the material on record and the details furnished by the assessee, and after the Additional Commissioner of Income-tax, having personally inspected the operation of CFS, the Assessing Officer allowed the claim of the assessee of deduction, and consequently, the Assessing Officer framed scrutiny. That, beyond the period of four years from the date of relevant assessment year, the respondent has issued the impugned Notice under Section 148 of the Act by which the Assessing Officer has sought to reopen the assessment for A.Y 2005-2006 on the ground that the income chargeable to tax within the meaning of Section 147 of the Act has escaped the assessment. At the request of the assessee, the Assessing Officer has furnished the reasons recorded to reopen the assessment -Held impugned reopening can be said to be on change of opinion by the subsequent Assessing Officer. As observed hereinabove, the claim of the assessee under Section 80IA of the Act was specifically gone into in detail by the Assessing Officer, while framing scrutiny assessment under Section 143 [3] of the Act. The entire material which was produced on record; including the Certificate issued by the Customs authorities as well as after considering inspection by the Additional Commissioner of Income-tax, Jamnagar in respect of the aforesaid CFS, the Assessing Officer allowed the claim of the assessee and granted benefit under Section 80IA [4] of the Act. Under the circumstances, the impugned re-assessment is nothing but a change of opinion on the part of the subsequent Assessing Officer. Under the circumstances, the reopening of the concluded scrutiny assessment under Section 143 [3] of the Act and that too after a period of four years is unsustainable and/or not maintainable.In view of the above and for the reasons aforestated, the present writ petitions succeed. The impugned Notices issued under Section 148 of the Income-tax Act, 1961 by the respondent are hereby quashed and set-aside. Rule made absolute to the aforestated extent with no order as to costs -Rule made Obsolute.