IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 ITA.No. 775 of 2009() --------------------- ITA.1035/COCH/2005 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT: ------------------------------ COMMISSIONER OF INCOME TAX, KOTTAYAM. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): --------------- SHRI.P.M.PAUL, GLEN TEA FACTORY, GLEN MARY P.O., PEERMADE, IDUKKI DISTRICT. ADV. SRI.P.BALAKRISHNAN (E) THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2010, ALONG WITH ITA NO. 1234,1247& 1328 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... I.T. Appeal Nos.775,1234,1247 & 1328 of 2009 .................................................................... Dated this the 10th day of February, 2010. JUDGMENT Ramachandran Nair, J. The question raised is whether the Tribunal was justified in cancelling income escaping assessment completed under Section 147 of the Act by revising intimation issued under Section 143(1)(a) of the Act. The Tribunal found that the Assessing Officer could have made the assessment by issuing notice under Section 143(2) and having failed to proceed to make regular assessment, he is barred from initiating proceedings under Section 147. However, Senior Standing Counsel has relied on decision of the Supreme Court in ASST. COMMISSIONER OF INCOME-TAX VS. RAJESH JAVERI STOCK BROKERS P. LTD. reported in (2007) 291 ITR 500 wherein the Supreme Court has held that while issuing an intimation under Section 143(1)(a), the Assessing Officer cannot be said to have formed an opinion and, therefore, the subsequent notice issued under Section 147 cannot be said to be on account of change of opinion. We notice that the judgment of the Supreme Court abovereferred has been reported 2 after the orders of the Tribunal. This court also had occasion to consider the authority of the Assessing Officer to reopen assessment under Section 147 after issuing intimation under Section 143(1)(a) without making regular or scrutiny assessment. During hearing counsel appearing for the assessee pointed out that all material facts required for assessment are available in the return itself and so much so, some assessments completed beyond four years are not tenable. Since this issue is not seen raised before the Tribunal and in view of the subsequent decision of the Supreme Court abovereferred and judgments of this court, we feel the matter should be reconsidered by the Tribunal. We, therefore, allow the appeals by setting aside the orders of the Tribunal and remand the matter to the Tribunal for reconsideration by it after giving opportunity of hearing to both sides. The maintainability of the appeal under the Circular also should be considered by the Tribunal while deciding the matter afresh. C.N.RAMACHANDRAN NAIR Judge P.S.GOPINATHAN Judge pms