S.H Kapadia, J.:— By notice dated 14.3.2001, the petitioner - assessee was informed about reopening of its assessment for the assessment year 1994-1995. That notice was challenged vide Writ Petition No. 955 of 2001. In that matter, the notice under Section 148 was issued after an order of assessment came to be passed against the petitioner herein under Section 143(3) of the Act. That writ petition came to be rejected by this Court on 17.9.2001 Simultaneously, the Department also issued notices dated 2.3.2001 and 14.3.2001 under Section 148 of the Income Tax Act alleging escapement of income from assessment for the assessment years 1995-1996 and 1996-1997. The said notices are under challenge in the present two writ petitions. The only factual difference is that the impugned notices herein seek to set aside the Intimation under section 143(1)(a) whereas, in the earlier Writ Petition No. 955 of 2001 the notice sought to reopen the assessment after the Assessment Order was passed under section 143(3) of the Act.
2. Therefore, both the above writ petitions, were taken up together. They were heard alongwith Writ Petition No. 955 of 2001. They were dismissed on 17.9.2001 by the following order:
“For the reasons to be recorded separately in the Oral Judgment, writ petition is rejected.”
FACTS:
3. For the sake of convenience, however, the facts in Writ Petition No. 943 of 2001 are mentioned hereinafter.
4. The petitioner filed its return of income for assessment year 1995-1996 on 31st October, 1995 showing total income of Rs. 6,77,380/-. This return was accompanied by petitioner's audited accounts for the year ending 31.3.1995 and by a Tax Audit Report under Section 44AB of the Act. The return of income was accepted by the Department under section 143(1)(a). However, the A.O subsequently detected that an unpaid expense amounting to Rs. 7,85,613/- was not disallowed while accepting the returns of the assessee. Therefore, the impugned notice under Section 148 came to be issued. This notice is dated 14.3.2001 This notice has been challenged in Writ Petition No. 943 of 2001.
ARGUMENTS:
5. On behalf of the petitioner, it was urged that the impugned notice has been issued merely on the basis of change of opinion and, therefore, it cannot justify a valid reassessment. This argument was also advanced in Writ Petition No. 955 of 2001 which has been dismissed. We do not wish, therefore, to repeat our reasoning once again.
6. Mr. Dastur, learned counsel for the petitioner, however, urged that the Impugned notices dated 14.3.2001 is a sequel to the notice also dated 14.3.2001 given to the petitioner for the assessment year 1994-1995. He contended that, that notice was given for assessment year 1994-1995 after the petitioner was assessed under Section 143(3). He contended that even for assessment year 1994-1995 the reopening was sought on the ground that unpaid expenses were not disallowed. He, therefore, contended that the impugned notice in the present case is on the same grounds as the impugned notice which was the subject matter of the Writ Petition No. 955 of 2001. He contended that although in the present case, reopening is sought of an Order passed under section 143(1)(a), since the impugned notice herein flows from the earlier notice for assessment year 1994-1995, the proviso to section 147 of the Income Tax Act will also apply to the facts of the present case. In other words, Mr. Dastur, learned counsel for the assessee argued that, in the present case also, the assessment under section 143(1)(a) could not have been reopened as there is no allegation of suppression of material facts in the reasons given by the A.O In other words, he contended that the proviso to Section 147 would also apply to the facts of the present case as the impugned notice in the present writ petition is a sequel to the impugned notice in the earlier Writ Petition No. 955 of 2001.
FINDINGS:
7. There is no merit in the two writ petitions. In the present case, returns have been accepted under section 143(1)(a). Thereafter, the A.O found that unpaid expenses which ought to have been disallowed were not disallowed. This aspect was overlooked when the returns were accepted under section 143(1)(a). Therefore, there is no question of change of opinion as alleged. Therefore, the first argument is rejected. On the second argument, it may be noted that the proviso to Section 147 applies only to cases where reopening is sought of assessments under Section 143(3). In the present case, there was no assessment of the petitioner under Section 143(3) in respect of the assessment years 1995-1996 and 1996-1997. Hence, the proviso to Section 147 has no application. It is true that after the returns came to be accepted in respect of assessment year 1995-1996, four years have elapsed. However, there was no assessment under section 143(3) as in the case of the notice which is the subject matter of Writ Petition No. 955 of 2001. Therefore, the proviso to section 147 has no application to the facts of the present case. Under the Income Tax Act, each year is a separate unit. Therefore, there is no merit in the argument advanced on behalf of the assessee that the impugned notice in the present case is a sequel to the notice dated 14.3.2001 which is the subject matter of Writ Petition No. 955 of 2001. As stated above. Writ Petition No. 955 of 2001 was in respect of assessment year 1994-1995 whereas the present two writ petitions are seeking to reopen the assessment for assessment year 1995-1996 and 1996-1997. Hence, there is no merit in the above arguments on behalf of the assessee.
CONCLUSION:
8. For the above reasons, both the Writ Petitions fall. Accordingly, Writ Petition No. 943 of 2001 and Writ Petition No. 935 of 2001 stand rejected.