Retrospective amendment no basis to reopen beyond 4 years – HC Disapproves AO’s Practice to Delay Passing Objection Orders

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Doshion Ltd. Vs. ITo (Ahmedabad HC) – Having thus heard learned counsel for the parties and having perused the documents on record, it clearly emerges that the assessment previously framed after scrutiny is sought to be reopened beyond the period of 4 years from the end of relevant assessment year. In the reasons recorded, the Assessing Officer has not suggested that such income escaped assessment for the failure on the part of the assessee to disclose truly and fully all material facts. In fact the sole ground on which such scrutiny assessment is sought to be reopened beyond 4 years is that by virtue of Explanation to Section 80IA added with retrospective effect from 1.4.2000, income derived from the works contract would not qualify for deduction under Section 80IA of the Act. Firstly,we are of the opinion that by virtue of such retrospective amendment assessment previously framed after scrutiny could not have been reopened beyond the period of 4 years without any thing on record to suggest that the income chargeable to tax had escaped assessment for the failure on the part of the assessee to fully and truly disclose all material facts. We may notice that the Explanation in question, which was introduced in the year 2009 but with retrospective effect from 1.4.2000 reads as under:-

“ Explanation- For the removal of doubts, it is hereby declared that nothing contained in this section shall apply in relation to a business referred to in sub-section (4) which is in the nature of a works contract awarded by any person (including the Central or State Government) and executed by the undertaking or enterprise referred to in sub-section (1).”
It may be that in a given case on account of such Explanation, the assessee may be disentitled to claim deduction under Section 80IA of the Act. However, this is not the same thing to suggest that assessment previously framed that too after scrutiny could be reopened beyond the period of 4 years without any failure on the part of the assessee to disclose truly and fully all material facts.

Objections raised by the assessee against the notice for reopening remained pending with the Assessing Officer for nearly 6 months. Sometime in the middle of December, 2011 the Assessing Officer disposed of such objections and, thereafter proceeded to pass the final order of assessment in less than two weeks. Had this been an isolated case of such nature, we would have passed it off as one-off instance. However, such tendency to delay disposing of the objections and, thereafter at the fag end of final time limit, to frame the assessment, is noticed in more cases than one. We cannot approve of such tendency. This we are sure was not the intention of the Apex Court when the decision in the case of GKN Driveshafts (India) Ltd. vs. Income-Tax Officer and others reported in [2003]259 ITR 19 was rendered. We are sure this would be brought to the notice of the Assessing Officers by the Department so that such instances do not recur in future. Petition is disposed of accordingly.