Bombay High Court
The Saraswat Co-Operative Bank Ltd vs Assistant Commissioner Of Income Tax ... on 26 August, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-OS:12957-DB
J-OSWP-1910-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1910 OF 2022
The Saraswat Co-operative Bank Ltd.
Eknath Thakur Bhawan
953, Appasaheb Marathe Marg,
Prabhadevi, Mumbai-400025
PAN No. AABAT4497Q ...Petitioner
Versus
1. Assistant Commissioner of Income-tax Circle-
1(3)(1)
Room No.540, 5th Floor, Aaykar Bhavan, M.K.
Road, New Marinelines, Mumbai-400 020
2. Principal Commissioner of Income-tax Circle-1
Room No. 330, 3rd Floor, Aaykar Bhavan, M.K.
Road, Mumbai-400 020
3. National Faceless Assessment Centre
Through the Principal Chief Commissioner of
Income-tax, Room No. 401, 2nd Floor, E-Ramp,
Jawaharlal Nehru Stadium, New Delhi-110 003
4. The Union of India
Through the Secretary, Government of India,
Ministry of Finance, New Delhi-110 001 ...Respondents
Mr. Percy Pardiwala, Senior Advocate, a/w Hiten Thakkar, i/b
Lumiere Law Partners, Advocates for the Petitioner.
Digitally
signed by
ASHWINI
ASHWINI
JANARDAN
JANARDAN VALLAKATI
Mr. Suresh Kumar, Advocate for Respondents.
VALLAKATI Date:
2024.08.26
14:07:23
+0530
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CORAM : G. S. KULKARNI &
SOMASEKHAR SUNDARESAN, JJ.
RESERVED ON: JULY 22, 2024
PRONOUNCED ON: AUGUST 26, 2024
JUDGEMENT:
(Per, Somasekhar Sundaresan J.)
1. Rule. With the consent of the parties, rule is made returnable
forthwith and the Writ Petition is taken up for final disposal.
2. This Writ Petition challenges the reassessment proposed to
be undertaken by the Revenue, of the income tax return filed by the
Petitioner-Bank for the Assessment Year 2015-16. The notice dated 30 th
March, 2021 initiating reassessment ("Impugned Notice") issued under
Section 147 read with Section 148 of the Income Tax Act, 1961 (" the
Act") has been approved under Section 151 of the Act on the premise
that income had escaped assessment owing to absence of full and true
disclosures by the Petitioner at the time of the original assessment.
Factual Background and Context:
3. The original assessment was made pursuant to an order
dated 22nd December, 2017 ("Assessment Order") after scrutiny of the
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returns filed by the Petitioner. The Petitioner had originally declared a
total income of Rs. 95.14 Crores. Pursuant to a notice for scrutiny under
Section 143(2) dated 29th July, 2016. Another notice dated 27th
November, 2017 was issued under Section 142(1), along with a
questionnaire. Eventually, an Assessment Order was passed computing
total income of Rs. 105.14 Crores, after disallowance of a deduction in
the sum of Rs. 10 Crores.
4. Five years after the end of the Assessment Year, the
Impugned Notice was issued. On the Petitioner seeking reasons
underlying the Impugned Notice, reasons were communicated to the
Petitioner vide letter dated 6th August, 2021. The relevant contents are
extracted below:-
2. On perusal of records, it is seen that the assessee in its
computation of income has claimed deduction with a narration
Leasehold improvement cost of Rs.49,78,007/-. Explanation-1, to
section 32(1), which required that the capital expenditure incurred on
leasehold building not owned by assessee qualifies for depreciation
@10% prescribed I.T. Rules, 1962. Taking into consideration this
statutory mandate the claim of deduction of Leasehold improvement
cost bears the characters of capital expenditure and therefore cannot be
considered for the deduction u/s. 37(1) of the I.T. Act. Accordingly non
disallowance of the same under assessment to the extent of
Rs.44,80,203/- after considering depreciation.
2.1 Further, on perusal of Profit & Loss a/c., it is seen that the
assessee has debited Rs. 44,13,500/- on account of donation. However,
in computation of total income, the donation has not been disallowed
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while calculating the total taxable income.
2.2 Further, on perusal of P&L A/c., it is seen that the other
expenses debited to P&L A/c. also include amortization of investment
amounting to Rs.23,63,82,651/-. The nature of expenditure/loss claimed
on this account is capital in nature which is inadmissible by virtue of
Sec.37(1) of the I.T. Act, 1961.
2.3 Further, on perusal of report u/s. 44AB especially clause 34C of
the same it is observed that auditors have quantified interest u/s.
201(1A) total of which works to Rs.46,446/. On perusal of computation
of income it observed that no disallowance has been made. These facts
were not discussed by the assessing officer while finalising the
assessment. The same has not been brought to the notice of the
assessing officer by the assessee with a view to conceal the above facts
from the assessing officer.
3. Hence, it is clear that there is failure on the part of assessee to
disclose fully and truly all material facts necessary for the assessment
for the year in question within the meaning of First provision to section
147(1) of the Act.
4. Even if tax rate of 30 percent is considered (ignoring surcharge
and cess), the tax sought to be evaded amounts to Rs. 7,35,96,840/-
which is above is Rs. 1,00,000/- As stated earlier, the assessee has not
disclosed any of these facts at the time of original proceedings.
Accordingly, the juristic requirements for reopening the assessment are
satisfied.
[Emphasis Supplied]
5. By a letter dated 4th September, 2021 the Petitioner raised
objections to the reasons offered. The Petitioner argued that the
reasons point out to a mere change in opinion and that no new tangible
material has been brought to bear. The Petitioner submitted that there
was nothing to show that material facts had not been fully and truly
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disclosed by the Petitioner during the original assessment. The
Petitioner asserted that under Section 147, when reassessment is sought
to be initiated after the expiry of four years from the end of the relevant
assessment year, without a demonstration of such failure to disclose
material facts, reassessment would not be permissible.
6. The Revenue, by an order dated 25th February, 2022
("Impugned Order") rejected the objections. In a nutshell, the decision
to conduct reassessment was stoutly defended. The Petitioner was told
that all its objections could well be raised in the course of the
reassessment proceedings. Consequently, this Writ Petition was filed
seeking to quash the Impugned Notice, the Impugned Order, and a
notice dated 11th November, 2021 under Section 143(2) read with
Section 147 of the Act, calling upon the Petitioner to participate in the
reassessment proceedings.
7. A Division Bench of this Court, by an order dated 14 th March,
2022, granted ad-interim relief, directing the Respondent-Revenue to
furnish a copy of the sanction for reassessment accorded under Section
151 of the Act, and also restraining all further proceedings in the matter.
The ad-interim restraint on conduct of the reassessment has continued
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till date.
8. The primary ground of challenge to the Impugned Notice is
that the foundational ingredients of Section 147, including jurisdictional
facts, are absent. Therefore, the very issuance of the Impugned Notice
purported to be without jurisdiction, the Petitioner has sought
intervention of this Court under Article 226 of the Constitution of India
to quash and set aside the Impugned Notice and all consequential
actions by the Revenue.
Section 147 and its import:
9. Section 147, as applicable at the time of issuance of the
Impugned Notice, sets out certain essential ingredients for initiating
reassessment after the expiry of four years from the end of the relevant
assessment year. Failure on the part of the assessee to fully and truly
disclose all material facts necessary for the assessment is a vital
ingredient for initiating reassessment. The relevant extracts of Section
147 are set out below:-
"147. Income escaping assessment.- If the Assessing Officer has reason to
believe that any income chargeable to tax has escaped assessment for any
assessment year, he may, subject to the provisions of sections 148 to 153,
assess or reassess such income and also any other income chargeable to tax
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which has escaped assessment and which comes to his notice subsequently
in the course of the proceedings under this section, or recompute the loss or
the depreciation allowance or any other allowance, as the case may be, for
the assessment year concerned (hereafter in this section and in sections 148
to 153 referred to as the relevant assessment year):
Provided that where an assessment under sub-section (3) of Section 143 or
this Section has been made for the relevant assessment year, no action shall
be taken under this section after the expiry of four years from the end of the
relevant assessment year, unless any income chargeable to tax has escaped
assessment for such assessment year by reason of the failure on the part of
the assessee to make a return under section 139 or in response to a notice
issued under sub-section (1) of section 142 or section 148 or to disclose
fully and truly all material facts necessary for his assessment, for that
assessment year:
Provided further *****
Provided also *****
Explanation 1 to Explanation 4 *****
[Emphasis Supplied]
10. Even a plain reading of the foregoing would show that a vital
precondition for invoking Section 147 of the Act after the expiry of four
years from the end of the relevant assessment year, is that during the
original assessment, the assessee ought to have failed to fully and truly
disclose all material facts necessary for the assessment. It is evident
from the face of the record that the reassessment was initiated in March
2021, which is five years after the end of the Assessment Year 2015-16.
Contentions of the Parties:
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11. Mr. Percy Pardiwala, learned Senior Counsel representing the
Petitioner, pointed out that on the face of it, the Impugned Notice and
the reasons in support of it, do not make out a case for the reassessment
being valid. Since the reassessment is proposed after the four-year
period referred to in Section 147, it was vital for the Revenue to show at
least on a prima facie basis, that the Petitioner had failed to disclose
fully and truly, all material facts necessary for the original assessment.
12. Apart from a bald statement claiming that the Petitioner has
not disclosed all material facts fully and truly, there is nothing in the
Impugned Notice and in its supporting reasons to even suggest such
failure, learned Senior Counsel would submit. On the contrary, each of
elements based on which it was suggested that income had escaped
assessment, would inherently demonstrate that the reassessment was
based on a perusal of same facts as had been disclosed by the Petitioner
during the original assessment. The reassessment is motivated merely
by a change in the Revenue's opinion on the same facts as had been
disclosed during the assessment. Mr. Pardiwala would submit that:-
A) The substantial head under which the Revenue is now
seeking to conduct reassessment is that on a perusal of
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the profit and loss account, the Revenue believes that
amortisation of investments to the tune of Rs. 23.63
Crores ought to have been treated as capital
expenditure. The annual report for the financial year
2014-15 had been filed by the Petitioner with the
Assessing Officer under cover of a letter dated 26 th July,
2017, which showed the debit to the profit and loss
account. A reply dated 11th December, 2017 also
explained the amortisation in detail. Therefore, the facts
had indeed been fully and truly disclosed to the
Assessing Officer;
B) The Revenue's reading of the facts disclosed too is ex
facie erroneous. For example, in Paragraph 2.1 of the
reasons provided, the Respondent has stated that the
Petitioner had debited Rs. 43,13,500/- towards
donations, which ought to have been disallowed. The
computation of income statement and the profit and loss
account clearly show that donations of Rs.43,13,500/-
had been made, but a deduction under Section 80G
claimed and allowed, was Rs.6,15,250/-;
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C) Another reason offered for reassessment, also based "on
perusal of records", is that improvement of leasehold
property in the sum of Rs. 49.78 Lakhs ought to have
been treated as capital expenditure with depreciation at
the rate of 10%. The Assessing Officer had allowed the
same as revenue expenditure. Evidently, no failure to
disclose facts during the original assessment has been
shown in this regard; and
D) Likewise, the Revenue has asserted that perusal of the
Auditor's Report under Section 44AB of the Act would
show that interest to the tune of Rs. 46,446/- ought to
have been disallowed. The audit report indeed lists out
in full detail, each and every element of interest that
adds up to the aforesaid sum of Rs. 46,446/-, which
means that there had been no failure to disclose the
same.
13. Consequently, he would argue, the very jurisdictional fact
necessary for initiating proceedings under Section 147 read with Section
148 i.e. failure to disclose material facts, was missing. In relation to
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none of the aforesaid facts, has the Revenue sought to introduce any
new evidence it has unravelled or chanced upon.
14. Instead, Mr. Pardiwala would submit that the Revenue,
having conducted an informed assessment in 2017, is now seeking to
change its opinion on well-disclosed facts, and yet, purporting to invoke
Section 147 of the Act. In the absence of a failure by the Petitioner to
fully and truly disclose material facts, four years having passed since the
end of the Assessment Year, the returns simply cannot be reassessed.
Therefore, he submitted, the proposed reassessment is blatantly illegal,
arbitrary and constitutionally invalid, rendering the proceedings liable
to be quashed, necessitating intervention by this Court in exercise of its
jurisdiction under Article 226 of the Constitution of India.
15. Mr. Suresh Kumar, Learned Counsel on behalf of Revenue,
submitted that the affidavit-in-reply dated 7 th July, 2023 ("Reply
Affidavit") and the material already forming part of the record, would
show that the reassessment was considered necessary on the basis of an
audit memo received internally, containing observations and remarks
about the original assessment. He would submit that the reassessment
was evidently necessary because of the self-explanatory gaps set out in
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the reasons for the reassessment.
Consideration and Findings:
16. We have examined the record in detail with the assistance of
the Learned Counsel for the parties. We have also examined the
sanction granted under Section 151 for the reassessment, along with
reasons put up for securing the sanction. These reasons are near-
identical to what was eventually provided to the Petitioner on 6 th
August, 2021, with one paragraph of comments missing. We find that
the jurisdictional fact necessary to invoke Section 147 for reassessment
is absent. Considering that the reassessment is admittedly being
undertaken after the four-year period, it is necessary to show that
during the original assessment, there had been a failure 0n the part of
the Petitioner to disclose fully and truly, the material facts necessary for
the assessment.
17. The original assessment had been conducted pursuant to
scrutiny proceedings. It entailed active examination and thorough
engagement between the Petitioner and the Assessing Officer. The
scrutiny proceedings led to the Assessment Order, which increased the
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total income from the level computed in the returns (Rs. 95.14 Crores)
by Rs. 10 crores (to Rs. 105.14 Crores). Each of the four aspects set out
in the reasons for reassessment, related to facts fully disclosed by the
Petitioner in the course of the original assessment.
18. During the original assessment, a notice dated 29 th July,
2016, under Section 143(2) of the Act had been served on the Petitioner.
A notice dated 27th November, 2017 under Section 142(1) had also been
served. These notices were responded to. Detailed written replies dated
7th December, 2017 and 11th December, 2017 had been provided.
Personal hearings had also been held on 29 th November, 2017 and 8th
December, 2017. On each of the four counts for which reassessment is
being proposed, the facts had indeed been disclosed, as is seen from the
very reasons provided by the Revenue in support of initiating
reassessment.
19. Therefore, it is evident that the Revenue is now seeking to
express a different opinion based on the very same facts fully disclosed
during the original assessment. The following analysis would make this
clear:-
A) The treatment of revenue expenditure given in the tax returns
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to the amount of Rs. 49.78 lakhs incurred towards
improvement to leasehold property is writ large in the
statement of computation of income and in the financial
statements provided by the Petitioner to the Assessing Officer;
B) The amortisation of investments to the tune of Rs. 23.63
crores, being taken to the profit and loss account is admittedly
a facet now being commented upon by the Revenue from a
"perusal of the profit and loss account". While this is the most
sizable element in the proposed reassessment, the fact of
treating this as revenue expenditure was clearly disclosed by
the Petitioner and examined by the Assessing Officer. The
Petitioner's reply dated 11th December, 2017 in the scrutiny
proceedings, clearly disclosed and explained the workings of
the amortisation;
C) The total donation amount of Rs. 44.13 lakhs, and the mere Rs.
6.15 lakhs claimed and allowed as a deduction under Section
80G, was also evidently disclosed in more than one place in
the financial statements and computation of income
statement. Not only was this fact fully disclosed, but also the
Revenue's reading of what was disclosed is blatantly
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erroneous; and
D) The interest amount of Rs. 44,446/- that purportedly ought to
have been disallowed was admittedly set out in the Auditor's
Report filed by the Petitioner. Therefore, the Petitioner cannot
be accused of a failure to disclose this fact too - leaving aside
the issue of whether such a low amount could be regarded as a
"material fact".
20. It is evident from the Reply Affidavit that the change of
opinion by the Revenue is based on an internal audit of the Revenue's
functioning. Therefore, judgement calls taken by the Assessing Officer
during the scrutiny assessment conducted in 2017, are being re-visited
in 2021. An internal audit may be the basis for improving internal
processes in conduct of assessments. However, if the findings of such
internal audit are to translate into reassessment proceedings on the
premise that income has escaped assessment, it would be imperative to
comply with the rule of law legislated by Parliament. Section 147
explicitly stipulates the grounds on which, and the framework within
which, such reassessment may be initiated. The Revenue has invoked
the first proviso to Section 147(1) in order to initiate the reassessment.
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An essential ingredient of the first proviso is that no action for
reassessment can be taken after the expiry four years from the end of
the relevant assessment year, unless the income escaping assessment
has been caused by the failure on the part of the assessee to disclose
fully and truly all material facts necessary for the assessment. That vital
element is sorely missing in the instant case.
Sanction Mechanism under Section 151:
21. Evidently, the reassessment was first proposed internally on
24th March, 2021 by the Jurisdictional Assessing Officer, and was
recommended by a Range Officer on 25 th March, 2021, and approved by
the Principal Commissioner of Income-tax on the same day - all under
Section 151 of the Act. Therefore, the reassessment has been
contemplated and initiated one year after the expiry of four years from
the end of the relevant assessment year (2015-16). Therefore, failure by
the Petitioner to disclose material facts was a jurisdictional imperative,
which was simply incapable of being discerned from the material on
record. Therefore, we have no hesitation in holding that the Revenue's
bid to initiate reassessment is unfounded and in direct conflict with
Section 147 of the Act. Therefore, the sanction for reassessment under
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Section 151 could simply not have been given.
22. The requirement for sanction by a high-ranking official under
Section 151, is an inherent check and balance in the statutory scheme of
the Act. Such officers are expected to apply their mind to the facts and
the applicable law and then accord sanction. In the instant case, the
proposed reassessment was sanctioned by the Principal Commissioner
of Income-tax, with the following remarks:-
"Yes, I am satisfied with the reasons recorded by the A.O. for issuance
of Notice u/s 148 of the I.T.Act, 1961."
[Emphasis Supplied]
23. The power to sanction reassessment under Section 151, is
coupled with a duty to exercise such power reasonably, and not
arbitrarily. It is trite law that absence of valid reasons constitutes
arbitrariness. In the instant case, the entire process of according
sanction demonstrates non-application of mind to the ingredients of
Section 147, rendering the sanction to be arbitrary, calling for
intervention by a writ court. Evidently, the proposal, the
recommendation and the approval in the instant case was mechanical,
without either application of mind to the law and the facts or even a
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modicum of how the ingredients of the law had been met. In short, the
machinery under Section 151 completely failed.
24. The imperative requirement of compliance with the
ingredients of Section 147 and Section 148 is underlined in innumerable
judgments. However, we note with respect and approval, a judgment of
a Division Bench of this Court cited on behalf of the Petitioner, in case of
Hindustan Lever Ltd. v. R.B. Wadkar1 (per V.C. Daga and J.P. Devadhar
JJ.), and profitably extract the following:
18. Reading of proviso to section 147 makes it clear that if the Assessing
Officer has reason to believe that any income chargeable to tax has escaped
assessment for any assessment year, he may, subject to the provisions of
sections 148 to 153, assess or reassess such income and also any other
income chargeable to tax which has escaped assessment and which comes
to his notice subsequently in the course of the proceeding under section
147, or recompute the loss or the depreciation allowance or any other
allowance, as the case may be for the concerned assessment year. However,
where an assessment under sub-section (3) of section 143 has been made
for relevant assessment year, no action can be taken under section 147 after
the expiry of four years from the end of the relevant assessment year, unless
any income chargeable to tax has escaped assessment for such assessment
year by reasons of the failure on the part of the assessee to disclose all
material facts necessary for his assessment for that assessment year.
19. In the case in hand it is not in dispute that the assessment year involved
is 1996-97. The last date of the said assessment year was 31st March, 1997
and from that date if four years are counted, the period of four years
expired on 1st March, 2001. The notice issued is dated 5th November, 2002
[2004] 268 ITR 332 (Bombay)
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and received by the assessee on 7th November, 2002. Under these
circumstances, the notice is clearly beyond the period of four years.
20. The reasons recorded by the Assessing Officer nowhere state that there
was failure on the part of the assessee to disclose fully and truly all
material facts necessary for the assessment of that assessment year. It is
needless to mention that the reasons are required to be read as they were
recorded by the Assessing Officer. No substitution or deletion is
permissible. No additions can be made to those reasons. No inference can
be allowed to be drawn based on reasons not recorded. It is for the
Assessing Officer to disclose and open his mind through reasons recorded
by him. He has to speak through his reasons. It is for the Assessing Officer
to reach to the conclusion as to whether there was failure on the part of the
assessee to disclose fully and truly all material facts necessary for his
assessment for the concerned assessment year. It is for the Assessing
Officer to form his opinion. It is for him to put his opinion on record in
black and white. The reasons recorded should be clear and unambiguous
and should not suffer from any vagueness. The reasons recorded must
disclose his mind. Reasons are the manifestation of mind of the Assessing
Officer. The reasons recorded should be self-explanatory and should not
keep the assessee guessing for the reasons. Reasons provide link between
conclusion and evidence. The reasons recorded must be based on evidence.
The Assessing Officer, in the event of challenge to the reasons, must be able
to justify the same based on material available on record. He must disclose
in the reasons as to which fact or material was not disclosed by the assessee
fully and truly necessary for assessment of that assessment year, so as to
establish vital link between the reasons and evidence. That vital link is the
safeguard against arbitrary reopening of the concluded assessment. The
reasons recorded by the Assessing Officer cannot be supplemented by filing
affidavit or making oral submission, otherwise, the reasons which were
lacking in the material particulars would get supplemented, by the time the
matter reaches to the Court, on the strength of affidavit or oral submissions
advanced.
21. Having recorded our finding that the impugned notice itself is beyond
the period of four years from the end of the assessment year 1996-97 and
does not comply with the requirements of proviso to section 147 of the Act,
the Assessing Officer had no jurisdiction to reopen the assessment
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proceedings which were concluded on the basis of assessment under section
143(3) of the Act. On this short count alone the impugned notice is liable to
be quashed and set aside.
[Emphasis supplied]
25. Having regard to the foregoing and in view of the findings
returned by us, the Writ Petition deserves to be allowed in the following
terms: -
A) The order dated 25th March, 2021 sanctioning the reassessment
under Section 151 of the Act; the Impugned Notice dated 30 th
March, 2021 issued under Section 148 of the Act; the Impugned
Order dated 25th February, 2022 rejecting the objections raised by
the Petitioner are declared to be arbitrary and devoid of valid
reasons and therefore illegal;
B) Consequently, the order dated 25 th March, 2021 sanctioning the
reassessment under Section 151 of the Act; the Impugned Notice
dated 30th March, 2021 issued under Section 148 of the Act; the
Impugned Order dated 25th February, 2022 and all consequential
proceedings in respect of reassessment are hereby quashed and
set aside.
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26. Rule is made absolute in the aforesaid terms, and the Writ
Petition is disposed of accordingly. There shall be no order as to costs.
[SOMASEKHAR SUNDARESAN, J.] [G. S. KULKARNI, J.]
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