A notice under Section 148 of the Income Tax Act is invalid if issued beyond the limitation period and based on previously available information, constituting a change of opinion.

ORDER :

(PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA)

[1] By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice issued by the respondent – Revenue under Section 148 of the Income Tax Act, 1961 (for short, “the Act”) dated 27th March 2021, thereby the reassessment sought to be initiated for the Assessment Year 2014- 15.

[2] The brief facts of the case can be stated as under:

[2.1] The petitioner is a cooperative society registered under the Cooperative Societies Act. The petitioner filed its original return of income for the Assessment Year 2014-15 on 25th November 2014 declaring total income at Rs.Nil. The case of the petitioner was then processed and also selected for scrutiny. A detailed scrutiny was undertaken. A notice under Section 142(1) of the Act dated 8th April 2016 was issued asking specific details relating to deduction claimed under Chapter VI-A. In furtherance thereto, the petitioner submitted complete details of deduction claimed under Section 80P of the Act vide its letter filed somewhere in May 2016.

[2.2] The then Assessing Officer, having considered all the material produced on record, framed the assessment under Section 143(3) of the Act at Rs.14,805/- vide its order dated 16th May 2016.

[2.3] The respondent – Revenue, vide its notice under Section 148 of the Act dated 27th March 2021, directed the petitioner to file return of income for the Assessment Year 2014-15. The petitioner, in compliance of the notice under Section 148 of the Act, filed return of income on 23rd April 2021 with a request to supply reasons recorded for reopening of the assessement. Upon such request being made, the petitioner was provided reasons recorded on 21st May 2021.

[2.4] Based on such recording of reasons, the petitioner filed preliminary objections on 2nd June 2021 challenging the validity of notice under Section 148 of the Act. However, the respondent – Revenue has not disposed of the objections of the petitioner despite repeated requests.

[3] Thus, being aggrieved and dissatisfied with the aforesaid, the petitioner has approached this Court for appropriate writ, order or directions.

[4] We have heard learned advocate Mr. B. S. Soparkar for the petitioner – assessee and learned advocate Mr. Rudram Trivedi for learned advocate Mrs. Kalpana Raval for the respondent – Revenue.

[5] Learned advocate Mr. Soparkar, while assailing the impugned notice, has mainly made the following submissions:

[5.1] Learned advocate Mr. Soparkar, at the outset, submitted that notice under Section 148 of the Act is ex facie illegal and without jurisdiction being issued admittedly beyond the period of limitation prescribed under statute. He, therefore, requested this Court to allow this petition on this count alone.

[5.2] Learned advocate Mr. Soparkar, without prejudice to the aforesaid, vehemently submitted that even on merits, the said notice dated 27th March 2021 is not tenable in the eye of law. Mr. Soparkar submitted that referring to the reasons recorded, the reassessment is sought mere on change of opinion as during the regular course of assessment under Section 143(3) of the Act, the complete details with regard to Chapter VI-A were submitted before the authority and after verifying the same, the then Assessing Officer has framed assessment under Section 143(3) of the Act, thus, the present notice based on the reasons recorded is nothing, but a change of opinion and the same is not permissible in the eye of law.

[5.3] Learned advocate Mr. Soparkar further submitted that the petitioner has to disclose fully and truly all material facts on record, hence, the impugned notice issued beyond the period of four years from the end of assessment year is not tenable. He has placed heavy reliance on the decision of the Hon’ble Bombay High Court in the case of Tahnee Heights CHS Ltd. vs. Income-tax Officer reported in [2023] 147 taxmann.com 335 (Bombay).

[6] By making above submissions, learned advocate Mr. Sop