Debangsu Basak, J. - (1.) The petitioner has challenged a notice under Section 148 of the Income Tax Act, 1961 dated April 7, 2010 and the Order dated November 26, 2010 passed by the authorities rejecting the objections of the petitioner.
(2.) Learned Senior Advocate appearing for the petitioner has submitted that, the department has no reason to invoke Section 148 of the Act of 1961. He has questioned the assumption of jurisdiction under Section 147 read with Section 148 of the Act of 1961. According to him, all necessary information were available with the Assessing Officer in respect of the concerned financial year. The petitioner had made tax and full disclosure of its amounts. The petitioners underwent a scrutiny assessment under Section 143(3) of the Act of 1961 in respect of financial year concerned. The twin grounds cited in the reasons for invoking Section 148 of the Act of 1961, are not available to the department. He has referred to the first ground being the alleged incorrect claim of depreciation while computing book profit under Section 115JB of the Act of 1961, and has submitted that, on such score, all material facts were in possession of the Assessing Officer during the scrutiny assessment. The Assessing Officer had dealt with such aspect in the order passed under Section 143(3) of the Act of 1961 on December 24, 2009. The Assessing Officer had formed an opinion on the basis of the materials placed before him while computing the assessment. The Assessing Officer is not entitled to change his opinion on the basis of existing facts to reopen the assessment under Section 147 and 148 of the Act of 1961. He has relied upon (Amrit Feeds Limited v. Assistant Commissioner of Income Tax & Ors., 2012 344 ITR 187), (Commissioner of Income Tax v. Kalvinator of India Ltd., 2002 256 ITR 1), (Commissioner of Income-Tax v. Kelvinator of India Ltd., 2010 320 ITR 561), (Debashis Moulik v. Assistant Commissioner of Income-Tax, 2015 370 ITR 660 (Cal)), (Berger Paints India Ltd. v. Assistant Commissioner of Income Tax & Ors.,2010 370 ITR 369 (Cal)) and (Gujarat Power Corporation v. Assistant Commissioner of Income-Tax, 2013 350 ITR 266) in support of his contentions.
(3.) Learned Senior Advocate for the petitioner has submitted that, the Assessing Officer has limited powers while framing assessment under Section 115J of the Act of 1961. He has relied upon (Apollo Tyres Ltd. v. Commissioner of Income-Tax, 2002 255 ITR 273), (Malayala Manorama Co. Ltd. v. Commissioner of Income-Tax, 2008 300 ITR 251) and (Commissioner of Income-Tax v. Binani Cement Ltd., 2016 384 ITR 457 (Cal)) in support of such contentions. He has drawn the attention of the Court to the fact that, the reasons for invocation of Section 148 of the Act of 1961 cannot be subsequently improved upon by either oral submissions or by the affidavit in opposition. He has relied upon (Ranglal Bagaria (HUF) v. Assistant Commissioner of Income-Tax & Ors., 2016 384 ITR 477 (Cal)), (Anil Kumar Bhandari v. Joint Commissioner of Income-Tax & Ors., 2007 294 ITR 222) and (NDT Systems & Anr. v. Income-Tax Officer & Ors., 2014 363 ITR 603 (Bom)) in support of such contentions.;