I.  Useful Case Laws: 

1.  Replika Press Pvt. Ltd. & Anr Vs. ACIT, WP(C) 13838/2009, Date of order: 22-01-2013, High Court of Delhi

Whether issue of notice u/s 148 for reopening of assessment u/s 147 on the ground that the supply to domestic tariff area did not amount to exports?

The Assessing Officer had specifically raised a query with regard to the supplies made in the domestic tariff area and the petitioner / assessee had given a detailed reply to the same. The Assessing Officer, after considering the reply furnished by the assessee, framed the assessment order in which, as we have pointed out above, he made specific references to exports in the domestic tariff area and / or constructive exports.

While computing the claim for exemption under Section 10B, the Assessing Officer has included the supply made in the domestic tariff area, both in the main body of the assessment order as also in Annexure-A thereto, which was the calculation of the deductions. Therefore, it is absolutely clear that the Assessing Officer had applied his mind to the very issue which is now sought to be raised under Section 147 of the said Act. That would mean that the present venture of invoking Section 147 is nothing but a mere change of opinion, which is impermissible in law, as is well settled by a long line of decisions. The second point of the petitioner is also well taken that an audit party could not have commented on a point of law and, particularly, on an interpretation of Section 10B of the said Act.

(Please click here for judgment)

2.  CIT Vs. Pardesi Developers & Infrastructure Pvt. Ltd., W.P.(C) 5536/2012, Judgment delivered on: 16.01.2013, High Court of Delhi

Whether issue of notice u/s 148 for reopening of assessment u/s 147 on the reason that assessee company is involved in accommodation entry?

We find it difficult to believe the plea taken in the purported reasons that the said information was “neither available with the department nor did the assessee disclose the same at the time of assessment proceedings”. From the aforesaid facts it is clear that the information was available with the department and it had been circulated to all the assessing officers.

There is nothing to show that the assessing officer did not receive the said information. And, there is nothing to show that the assessing officer had not applied his mind to the information received by him. On the contrary, it is apparently because he was mindful of the said information that he issued notices under section 133(6) of the said Act directly to the parties to confirm the factum of application of shares and the source of funds of such shares. Therefore, the very foundation of the notice under section 148 of the said Act is not established even ex facie. Consequently, it cannot be said that the assessing officer had the requisite belief under section 147 of the said Act and, as a consequence, the impugned notice dated 30.08.2011 and the order dated 03.08.2012 are liable to be quashed.

(Please click here for judgment)        
 

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  Team - Voice of CA