Mere change of opinion cannot be a ground to reopen assessment order.

(PRAYER: Petition filed under Article 226 of the Constitution of India Praying for the issuance of a Writ of Certiorari to call for the records on the files of the respondent herein in PAN AX 1/015/2000-01 dated 30.03.2005 under Section 148 of the Income Tax Act 1961 and quash the proceedings of the respondent in AX1/015/2000-01 dated 30.03.2005 as illegal and without jurisdiction.)

With the consent of counsel on either side, the writ petition itself is taken up for final disposal.

2. The prayer in the writ petition is for the issuance of a Writ of Certiorari to call for the records on the files of the respondent herein in PAN AX 1/015/2000-01 dated 30.03.2005 under Section 148 of the Income Tax Act 1961 and quash the proceedings of the respondent in AX1/015/2000-01 dated 30.03.2005 as illegal and without jurisdiction.

3. The short facts that are necessary for the disposal of the above writ petition and as culled out from the affidavit filed in support of the writ petition are as follows:

(i) The petitioner is a registered company which is running hospitals for diagnosis, mitigation and treatment of ailments and diseases in different parts of the country. By an order of amalgamation dated 18.04.2000, a scheme was approved to amalgamate M/s. Deccan Hospital Corporation Limited (hereinafter referred to as “DHCLâ€) running a hospital at Hyderabad, which is equipped with various diagnostic, radiological and pathological departments with the petitioner company. DHCL had an unabsorbed depreciation of Rs.11,60,29,077/- as on 31.03.1999 which under the scheme of amalgamation belonged and vested with the petitioner company. The scheme had necessary approvals of the Andhra Pradesh High Court and this Court.

(ii) In respect of the assessment year 2000-01 the petitioner submitted returns and claimed the benefit of Section 72A of the Income Tax Act (hereinafter referred to as “the Actâ€) to have the unabsorbed depreciation of DHCL as the depreciation of the petitioner. The respondent examined the details of the case and in his letter in G.I.No.AX1-015/2000-01 dated 07.03.2003, inter alia, under Section 142 vide paragraph 7 stated as follows:

“7. It is seen that during the previous year, Deccan Hospitals has got amalgamated with the assessee company. In this connection, you are requested to furnish the following:

Amount of loss accumulated in the case of Deccan Hospitals on the date of amalgamation alongwith the years in which such loss were incurred and carried forward.

P & L account and Balance Sheet of the Deccan Hospitals for the last three years and copies of assessments made during the said periodâ€.

(iii) The petitioner vide letter dated 19.03.2003 addressed to the Assessing Authority furnished all the particulars sought for. It is the case of the petitioner that being satisfied about the eligibility of the petitioner under Section 72A and after taking note of an opinion filed on behalf of the petitioner along with the returns, the assessment has been completed by the Deputy Commissioner (the then assessing officer) vide assessment order dated 28.03.2003 under Section 143 (3) of the Act and the benefit of Section 72A of the Act was granted to the petitioner in the assessment order. It is the further case of the petitioner that the petitioner preferred an appeal in ITA No.99/03-04/A.III against certain issues and the same was disposed of by the Appellate Authority on 21.08.2003 and further appeal is said to be pending before the Income Tax Appellate Tribunal, Chennai. It is the contention of the petitioner that the order of assessment is already merged in the appellate order.

(iv) While so the respondent issued a notice under Section 148 in his proceedings in PAN AX 1/015/2000-01 dated 30.03.2005 stating that he had reasons to believe that the Income tax chargeable to tax had escaped assessment and the said notice is challenged in the writ petition.

(v) The reasons recorded for reopening the assessment are,

“It is seen from