In case of retrospective
legislative amendment, rectification under section 154, as well as
reopening of assessment under section 147 are permissible as they are
not mutually exclusive.
The
review petition had been filed by the assessee alleging that, so far as
the issue regarding the constitutionality of the retrospective
amendment was concerned, though the plea was rejected by the Court, but
in doing so, the Court had wrongly placed reliance
on Section 154 and under Section 147 and to this extent, the order was
erroneous. Thus, it was contended that the scope of Section 154 and
Section 147 was different and distinct.
The High Court dismissed the review petition with following observations:
1)
The retrospective amendment constitutes tangible material permitting
the reopening of the assessment. It can even permit action for
rectification of the assessment on the
ground of mistake apparent from record;
2)
Just because action for rectification is permissible, it does not mean
that no action can be taken for re-opening the assessment because the
powers under section 147 and section 154 are not mutually exclusive and
there can be some overlapping and so long as the conditions for the
applicability of either of these sections are satisfied, the action
taken thereunder has to be validated;
3)
The assessee did not appear to have properly understood and appreciated
the purport of observation. It was of the impression that the decision
was rendered on the premise that if action under section 154 was
permissible, action under section 147 to reopen the assessment was
automatically impermissible;
4)
There could be overlapping of jurisdiction and so long as the
jurisdictional pre-conditions were satisfied, action could be taken by
the Assessing Officer under the appropriate section. Thus, there was no
merit in the review petition filed by assessee, which was, accordingly,
to be dismissed - ESTER INDUSTRIES LTD. V. UNION OF INDIA (2013) 39 taxmann.com 107 (Delhi)
No comments:
Post a Comment