M/S.tamil Nadu State Marketing Corporation Limited4Th Floor, Cmda Tower-Ii,Gandhi Irwin Bridge Road,Egmore, Chennai-600 008Rep.by Its Managing Director,Shri.t.s v. The Chief Commissioner Of Income Tax, Chennai-I

IN THE HIGH COURT OF JUDICATURE AT MADRAS THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM M/s.Tamil Nadu State Marketing Corporation Limited4th Floor, CMDA Tower-II,Gandhi Irwin Bridge Road,Egmore, Chennai-600 008Rep.by its Managing Director,Shri.T.Soundiah ..Petitioner in both W.P's vs. 1.The Chief Commissioner of Income Tax, Chennai-I, 124, MG Road, Chennai-34. 2.The Commissioner of Income Tax, Chennai-III, 124, MG Road, Chennai-34. 3. The Joint Commissioner of Income Tax, Company Circle III (1), 124, MG Road, Chennai-34. 4. The Assistant Commissioner of Income Tax, Company Circle III (1), 124, MG Road, Chennai-34. ..Respondents in both W.P's PRAYER IN W.P.No.31937 of 2013 : Writ Petition filed underArticle 226 of the Constitution of India, to call for therecords of the 4th respondent and quash the impugned noticeissued under Section 148 of the Income-Tax Act, 1961 inPAN:AAACT2964P dated 26.03.2013 and consequential order dated29.10.2013 in ACIT/CC/CC-III(1)/148 obj./reply.2013-14 for theassessment year 2006-07. PRAYER IN W.P.No.31938 of 2013 : Writ Petition filed underArticle 226 of the Constitution of India, to call for the https://hcservices.ecourts.gov.in/hcservices/ records of the 4th respondent in PAN/GIR: and quashthe impugned notice, dated 27.03.2013 issued under Section 148of the Income-Tax Act, 1961 and the consequential proceedings inACIT/CC/CC-III(1)/148 obj./reply.2013-14 dated 29.10.2013 inrespect of the assessment year 2008-09. The impugned notices dated 26.03.2013 and27.03.2013 issued under Section 148 of the Income-Tax Act, 1961and the consequential proceedings dated 29.10.2013 in respectof the assessment year 2006-07, 2008-09 are under challenge inthe present writ petitions. 2.The writ petitioner, who is M/s.Tamil Nadu StateMarketing Corporation Limited wholly owned and controlled by theGovernment of Tamilnadu, is engaged in the business of wholesaleand Retail vending in Liquor. For the assessment year 2008-2009,under reference the petitioner filed its return of income on29.09.2008 admitting a total income of Rs.6,17,46,875/-. Duringthe financial year 2007-08 relevant to assessment year 2008-09,the writ petitioner claimed deduction of a sum of SpecialPrivilege Fee amounting to Rs.2030,36,18,402/- in the profit andloss account for the year ended 31.03.2008. The petitioneradopted the rate of SPF as notified in G.O.(Ms).No.54, P & E(VIII) Department dated 04.08.2008 increasing the rate fromRs.57.72 per bulk litre to Rs.66.60 per bulk liter with effectfrom 01.04.2007. Accordingly, the petitioner provided for theSpecial Privilege fee calculated at the enhanced rate ofRs.66.60 for the sale made during the entire year. 3. The 4th respondent processed the return of income underSection 143(1) of the Income Tax Act. Subsequently, the case wastaken up for scrutiny and a notice under Section 143(2) dated13.08.2009 was issued. Assessment under Section 143(3) wascompleted on 07.12.2010 determining the total income atRs.324,54,68,479/-. While completing the assessment, theAssessing Officer among others added to the total income a sumof Rs.316,34,21,626/- being the difference in Special PrivilegeFee claimed and he has disallowed the same. 4. The 4th respondent/Assessing Officer while competing theassessment under Section 143(3) of the Act disallowed the https://hcservices.ecourts.gov.in/hcservices/ 3. The 4th respondent processed the return of income underSection 143(1) of the Income Tax Act. Subsequently, the case wastaken up for scrutiny and a notice under Section 143(2) dated13.08.2009 was issued. Assessment under Section 143(3) wascompleted on 07.12.2010 determining the total income atRs.324,54,68,479/-. While completing the assessment, theAssessing Officer among others added to the total income a sumof Rs.316,34,21,626/- being the difference in Special PrivilegeFee claimed and he has disallowed the same. 4. The 4th respondent/Assessing Officer while competing theassessment under Section 143(3) of the Act disallowed the https://hcservices.ecourts.gov.in/hcservices/ difference in enhanced SPF amounting to Rs.316,34,21,626/- on aestimated basis on the ground that (i) G.O.Ms.No.54 dated04.08.2008 was not prevailing as on the 31st March 2008; (ii)the G.O.(Ms).No.53 dated 20.07.2007 was not cancelled; (iii) theliability on account of enhanced SPF did not accrue as on31.03.2008; (iv) liability is not in the nature of Statutoryliability but more in the nature of contractual payment to beallowed under Section 43B; (v) charging of SPF on the basis ofper litre basis and increasing it every year on the basis ofG.O. is not justifiable; (vi) assessee has adopted methodologyto take out profits in the name of SPF before arriving attaxable profits and (vii) tax planning made after the end of thefinancial year so as to reduce profits. 5. It is contended that the petitioner has been vested withthe exclusive privilege for whole sale and retail distributionof Indian Made Foreign Liquor (IMFL) and beer in the State ofTamil Nadu. The Government vide The Tamil Nadu Prohibition Act,1973 read with relevant Rules made there under has fixedadditional vend fee (now special privilege fee) payable by thepetitioner for having granted the exclusive privilege of wholesale and retail distribution. 6. The Government of Tamil Nadu notifies the SpecialPrivilege Fee to be paid by the petitioner to the Government onthe sales made every month by means of Notification. SpecialPrivilege Fee payable is calculated on quantity of IMFS and Beersold by the appellant during a month and should be paid beforethe 10th of the succeeding month. On many occasions, theGovernment has notified the Special Privilege Fee payable by thepetitioner to the Government after the period to which theNotification applies. In all those cases, the petitioner hasbeen providing in the accounts for the period to which theNotification applies, at the rates notified by the Governmentand the same has been accepted by the Income Tax Department. 7. The Government Notified vide G.O.(Ms).No.54, P & E(VIII)Department dated 04.08.2008 increasing the rate from Rs.57.72per bulk liter to Rs.66.60 per bulk liter with effect from01.04.2007. Accordingly, the petitioner claimed deduction ofspecial privilege fee on the IMFL and Beer sold during therelevant previous year at the notified rate of Rs.66.60 per BulkLitre for the Special Privilege Fee for the sale made during theentire year. It is contended that the additions made by the 4threspondent/Assessing Officer in the assessment order dated07.12.2010 was challenged by way of an appeal before theCommissioner of Income Tax(Appeals). The CIT(Appeals) in orderdated 18.03.2011 confirmed the disallowance of claim of specialprivilege fee claimed on the basis of G.O.(Ms).No.54 dated04.08.2008. The petitioner filed an appeal before the Income Tax Appellate Tribunal and the Tribunal, in its order dated18.09.2012, allowed the assessee's appeal on merits and inITA.No.925/Mds/11 dismissed the appeals filed by the Department. Appellate Tribunal and the Tribunal, in its order dated18.09.2012, allowed the assessee's appeal on merits and inITA.No.925/Mds/11 dismissed the appeals filed by the Department. 8. On the basis of the order passed by the ITAT, the learnedcounsel appearing on behalf of the writ petitioner reiteratedthat the impugned notice issued under Section 147 of the IncomeTax Act for re-opening of the assessment is in violation of thejudgment of the ITAT and further, it amounts to change ofopinion which is impermissible under the provisions of the Act.As far as the Special Privilege Fee is concerned, the ITAT hasclearly settled the issues and passed an order in favour of thepetitioner. If at all the respondent is aggrieved, they have toprefer an appeal against the order passed by the ITAT and theyhave no authority to re-open the assessment in the matter ofSpecial Privilege Fee. Thus, initiation of proceedings underSection 148 itself is unsustainable. 9. The learned counsel for the petitioner contended thatwhen the very same subject matter was adjudicated before theITAT based on the assessment made with reference to the previousyears, then the said judgment is binding on the AssessingOfficer and by way of change of opinion, they cannot re-open theassessment already concluded. The petitioner relied on thejudgment of this Court dated 18.01.2018 passed in W.P.Nos.7598 &7599 of 2015 and this Court relied on the judgment of theHon'ble Supreme Court of India. The petitioner relied on theobservations made in the judgment holding that in respect ofsuch re-opening of Special Privilege Fee, it was consideredearlier and the issues were settled and the said re-opening isnothing but change of opinion. Accordingly, the said noticeissued under Section 148 was set aside. 10. The learned counsel relied paragraph No.15 of thejudgment which reads as under: "Thus, for the above reasons, the reopeningproceedings are held to be a clear case of change ofopinion. Consequently, the impugned assessment ordersare not sustainable in law. Accordingly, these writpetitions are allowed as prayed for. No costs.Consequently, connected miscellaneous petitions areclosed." 11. It is contended that the very same issue was decided bythis Court in the said judgment and it was the case filed by theassessee. While so, there is no reason to issue the impugnedorder by the Assessing Officer which is untenable. At theoutset, it is contended that the very issuance of notice underSection 148 of the Income Tax Act for re-opening of theAssessment is nothing but change of opinion and cannot be https://hcservices.ecourts.gov.in/hcservices/ construed as new materials. Thus, the writ petition is to beallowed. 12. The learned Senior Standing Counsel disputed the saidcontention by stating that the facts in respect of the writpetitions on hand are entirely different. It cannot beconsidered as change of opinion. The concept of change ofopinion contemplated under the Statute has been misconstrued andmisinterpreted by the writ petitioners. Thus, the judgmentrelied on by the petitioners dated 18.01.2018 passed by thisCourt is not applicable with reference to the facts of thepresent case. 13. In order to distinguish the facts, the learned SeniorStanding Counsel solicited the attention of this Court withreference to the findings in paragraph No.14 of the judgmentdelivered by this Court on 18.01.2018 which reads as under: 12. The learned Senior Standing Counsel disputed the saidcontention by stating that the facts in respect of the writpetitions on hand are entirely different. It cannot beconsidered as change of opinion. The concept of change ofopinion contemplated under the Statute has been misconstrued andmisinterpreted by the writ petitioners. Thus, the judgmentrelied on by the petitioners dated 18.01.2018 passed by thisCourt is not applicable with reference to the facts of thepresent case. 13. In order to distinguish the facts, the learned SeniorStanding Counsel solicited the attention of this Court withreference to the findings in paragraph No.14 of the judgmentdelivered by this Court on 18.01.2018 which reads as under: 14.As pointed out earlier, the respondent did notfollow the guidelines laid down by the Hon'ble SupremeCourt in GKN Driveshafts (India) Ltd. (supra) by whichthe respondent should have passed a speaking order andcommunicated to the petitioner before passing theimpugned assessment orders. This defect though said tobe stated as a curable defect, I am not inclined toaccept the said submission of the revenue, as it affectsthe rights of the assessee and goes to the very root ofthe matter. In fact, the assessee has, while submittingthe objections to the reopening vide representationdated 10.02.2015, specifically referred to the decisionin GKN Driveshafts (India) Ltd. (supra), yet theassessing officer ignored the same and proceeded to passthe impugned assessment orders. 14. Relying on the above findings, the learned SeniorStanding Counsel reiterated that the writ petition was allowedin the said case on the ground that the directives issued in GKNDriveshafts (India) Limited. (supra) were not followed.Therefore, the writ petition was allowed and the order of re-opening was set aside. However, in the present case, thedirectives laid down by the Hon'ble Supreme Court in GKNDriveshafts (India) Limited (supra) has been scrupulouslyfollowed by the respondents. Thus, the writ petitioner cannotrely upon the said judgment for the purpose of assailing theorder impugned in the present writ petition. When the writpetitions were allowed based on the ground that certaindirectives of the Hon'ble Apex Court in GKN Driveshafts (India)Limited (supra) were not followed, the said case cannot be citedas precedent for the purpose of quashing the present impugnednotice, wherein the respondent has followed the mandates laid down by the Hon'ble Apex Court of India in the case of GKNDriveshafts (India) Limited (supra). 15. The learned Senior Standing Counsel further relied onthe judgment of the Hon'ble Supreme Court of India in the caseof Kalyanji Mavji & cO. vs.Commissioner of Income Tax reportedin (1976) 102 ITR 287, wherein four principles are laid down. Ona combined review of the decisions of the Hon'ble Supreme Courtof India, the Hon'ble Supreme Court held that the principleswould apply to determine the applicability of Section 34(1)(b)to the following categories of cases: (1) Where the information is as to the true andcorrect state of the law derived from relevant judicialdecisions; (2) Where in the original assessment the incomeliable to tax has escaped assessment due to oversight,in advertence or a mistake committed by the Income-taxofficer. This is obviously based on the principle thatthe tax-payer would not be allowed to take advantage ofan oversight or mistake committed by the TaxingAuthority; (3) Where the information is derived from anexternal source of any kind. Such external source wouldinclude discovery of new and important matters orknowledge of fresh facts which were not present at thetime of the original assessment; (1) Where the information is as to the true andcorrect state of the law derived from relevant judicialdecisions; (2) Where in the original assessment the incomeliable to tax has escaped assessment due to oversight,in advertence or a mistake committed by the Income-taxofficer. This is obviously based on the principle thatthe tax-payer would not be allowed to take advantage ofan oversight or mistake committed by the TaxingAuthority; (3) Where the information is derived from anexternal source of any kind. Such external source wouldinclude discovery of new and important matters orknowledge of fresh facts which were not present at thetime of the original assessment; (4) Where the information may be obtained evenfrom the record of the original assessment from aninvestigation of the materials on the record, or thefacts disclosed thereby or from other enquiry orresearch into facts or law. 16. The learned Senior Standing Counsel relied on clause-4cited supra, wherein the Apex Court held that "where theinformation may be obtained even from the record of the originalassessment from an investigation of the materials on the record,or the facts disclosed thereby or from other enquiry or researchinto facts or law." 17. By relying on the said principles, it is contended thatadmittedly, the Special Privilege Fee was allowed during theprevious assessment year, more specifically, 2007-08. However,during the assessment year 2010-11, the Assessing Officer foundcertain materials to disallow the Special Privilege Fee and itis identified that the assessee committed certain intentionalacts to evade payment of tax. Therefore, the Assessing Officerformed an opinion that the assessment is to be re-opened. Oncenew materials were traced out with reference to the Special https://hcservices.ecourts.gov.in/hcservices/ Privilege Fee, while scrutinizing the returns for the assessmentyear 2010-11, the Assessment Officer is empowered to reopen theprevious assessment also as there is a reason to believe. Thus,the case referred by the petitioner is not applicable withreference to the facts and circumstances of the present case. Inthe present case, the Assessing Officer, while scrutinizing thereturns for the assessment year 2010-11, traced out certain newmaterials with reference to the Special Privilege Fee. 18. The learned Senior Standing Counsel reiterated that byway of Special Privilege Fee, the petitioner/Corporation isshowing loss on some occasions which is totally false and in-correct. Under these circumstances, the Assessing Officer formedan opinion that the assessee has failed to submit certainmaterials, evidences regarding Special Privilege Fee and thesaid Special Privilege Fee with reference to the Governmentorder is to be adjudicated by reopening the assessment alreadymade. Therefore, the said reopening cannot be construed aschange of opinion and the reopening is made based on thetangible evidences which are made while scrutinizing the returnsof the assessment year 2010-11. Further, the petitioner has todefend his case before the Authorities Competent and co-operatefor the assessment to be made based on reopening of theassessment. 19. In reply, the learned counsel for the petitioner made asubmission that the principles laid down by the Hon'ble SupremeCourt of India in the case of Kalyanji Mavji and Company citedsupra were overruled by the Hon'ble Supreme Court. Therefore,the reliance placed on by the respondents are untenable. 19. In reply, the learned counsel for the petitioner made asubmission that the principles laid down by the Hon'ble SupremeCourt of India in the case of Kalyanji Mavji and Company citedsupra were overruled by the Hon'ble Supreme Court. Therefore,the reliance placed on by the respondents are untenable. 20. The learned Senior Standing Counsel clarified that theHon'ble Supreme Court has overruled only the principle No.2 ofthe Kalyanji Mavji & Co. case and not regarding the principleNos.(3) and (4). Therefore, the submission made in this regardis to be rejected. In support of the said contention, thejudgment in the case of Virudhunagar Co-operative Milk SupplySociety Limited vs. Commissioner of Income Tax reported in[1989] 46 Taxman 13 (Madras) has been referred wherein theDivision Bench of this Court considered the principles laid downby the Hon'ble Supreme Court in the case of Kalyanji Mavji andCompany and made an observation as follows: The case of the assessee would fall withincategory (4) enumerated above, in that, the informationhad been obtained by the Officer from the record of theassessment proceedings in connection with the assessmentyear 1970-71. We may now notice Indian & EasternNewspaper Society's case (supra) where the Supreme Courthas pointed out at page 1004, referring to KalyanjiMavji & Co.'s case (supra), that the categorization incategory (4) enumerated above, in that, the informationhad been obtained by the Officer from the record of theassessment proceedings in connection with the assessmentyear 1970-71. We may now notice Indian & EasternNewspaper Society's case (supra) where the Supreme Courthas pointed out at page 1004, referring to KalyanjiMavji & Co.'s case (supra), that the categorization in that decision under category (2) thereof, i.e.,'incomeliable to tax has escaped assessment due to oversight,inadvertence or mistake, would also fall within Section34(1)(b) has been stated rather too widely and broadlyand goes even farther beyond what is warranted by thestatute and that an error discovered, would not give theOfficer the power to resort to a reopening under section147(b) of the Act. Though Indian & Eastern NewspaperSociety's case (supra) has taken the view that over-sight, inadvertence or mistake, would not fall withinsection 34(1)(b) nothing has been said by way ofdisapproval of the other categories enumerated inKalyanji Mavji & Co.'s case (supra) particularly withreference to category (4), within which the present casewould fall, We are, therefore, of the view of the viewthat the case of the assessee would fall with- incategory (4) as per the decision in Kalyanji Mavji &Co.'s case (supra) and that would justify the reopeningof the assessment. 21. In the present case, the respondent relied onclause-4 of the judgment in the case of Kalyanji Mavji andCompany. Therefore, the writ petitions are to be dismissed. 22. This Court has also considered the reopening ofassessment in the case of Dayanidhi Maran vs. AssistantCommissioner of Income Tax, Non-corporate Circle-1, Chennaireported in [2018] 98 Taxmann.com 2020 (Madras), wherein it isheld as follows: 21. In the present case, the respondent relied onclause-4 of the judgment in the case of Kalyanji Mavji andCompany. Therefore, the writ petitions are to be dismissed. 22. This Court has also considered the reopening ofassessment in the case of Dayanidhi Maran vs. AssistantCommissioner of Income Tax, Non-corporate Circle-1, Chennaireported in [2018] 98 Taxmann.com 2020 (Madras), wherein it isheld as follows: 93. On going through the said ingredients of theSection 147, this Court has no hesitation to concludethat the Assessing Officer has got wider power inrespect of covering the escaped assessments for thepurpose of reopening the assessment. The proviso toSection 147 states that “provided further that theAssessing Officer may assess or reassess such income,other than the income involving matters which are thesubject matters of any appeal, reference or revision,which is chargeable to tax and has escaped assessment”.This also provides various circumstances enabling theAssessing Officer to assess or reassess such incomeother than the income involving the matters which arethe subject matters of any appeal, reference orrevision. The wideness of the power has been furtherclarified in the said proviso clause. 94. Explanation 2 sub-clause (b) to Section 147also provides power to the Assessee where a return ofincome has been furnished by the Assessee but noassessment has been made and it is noticed by the Assessing Officer that the Assessee has understated theincome or has claimed excessive loss, deduction,allowance or relief in the return. 95. The circumstances are narrated wherein certainmaterials and informations are provided by the Assesseeat the time of filing of the returns and if the same hasnot been assessed by the Assessing Officer during therelevant assessment year and if it is subsequentlynoticed, then also the Assessing Officer is empowered toreopen the assessment in respect of the escapedassessments. 96. On a perusal of various circumstancesincorporated under Section 147 of the Act, for reopeningof the escaped assessment, this Court is of an opinionthat it is certainly flexible and wider power has beenprovided, enabling the Assessing Officer to reopen theassessment in the interest of revenue and to ensure thatthe Assessees pay the correct tax with reference to theprovisions of the Act. 97. This Court is of the firm opinion that wherecertain doubts in respect of the reasons or otherwisehas been raised by the Assessee, such benefit of doubtshould be held in favour of the revenue and not infavour of the taxpayer. Contrariness is to beestablished by the Assessee, while scrutinising thematerials available with the Assessing Officer. 98. It is for the Assessee to convince theAssessing Officer in respect of all such escapedassessments, informations and materials available andsubmit the returns. This being the legal principles tobe followed, the provisions are to be interpreted toachieve its purpose and the object and therefore thewider powers provided under Section 147 of the Act, forreopening of the escaped assessments can never berestricted by imposing certain conditions on theAssessing Officer. 99. Even in case of certain procedural lapses, thisCourt is of an opinion that such procedural lapses canbe taken advantage of by the Assessee only if it causesprejudice to the proceedings, if any. Such procedurallapses not causing any prejudice to the rights of theAssessee during the course of the proceedings of thereassessment, then the Assessee cannot file a writpetition, seeking quashing of the entire proceedings.Such writ petitions also cannot be entertained in view of the fact that such procedural lapses or omissions orcommissions have not caused any prejudice to theinterest of the Assessee nor resulted in denial of fairprocedure and opportunity to the Assessee." 99. Even in case of certain procedural lapses, thisCourt is of an opinion that such procedural lapses canbe taken advantage of by the Assessee only if it causesprejudice to the proceedings, if any. Such procedurallapses not causing any prejudice to the rights of theAssessee during the course of the proceedings of thereassessment, then the Assessee cannot file a writpetition, seeking quashing of the entire proceedings.Such writ petitions also cannot be entertained in view of the fact that such procedural lapses or omissions orcommissions have not caused any prejudice to theinterest of the Assessee nor resulted in denial of fairprocedure and opportunity to the Assessee." 23. In paragraph No.99 as stated above, in the present casealso, the assessee is not prejudiced on reopening of theassessment as they are entitled for an opportunity to put-forththeir contention and defend the case. Contrarily, the High Courtunder Article 226 of the Constitution of India cannot adjudicatewith reference to new materials or informations or evidencescollected or identified by the Assessing Officer for the purposeof invoking Section 147 of the Income Tax Act. Such an exercisecannot be done by the High Court and the assessee has to defendhis case by following the procedures contemplated under theStatute. 24. In respect of the order passed by the ITAT dated18.09.2012, those new materials identified by the AssessingOfficer in respect of returns of the year 2010-11 were not madeavailable nor adjudicated. Such new materials identified are tobe adjudicated on merits and in accordance with law. Contrarily,the said materials cannot be allowed to escape from the clutchesof law as rightly pointed out by the respondents in the presentcase. Therefore, a complete adjudication of such new materialsare imminent to cull out the truth, allowability ordisallowability of the Special Privilege Fee as claimed by theassessee. The Special Privilege Fee is running to severalcrores and if any evasions in this regard, the same are to becarefully adjudicated by the Authorities Competent in order tocull out the truth behind the facts and circumstances asnarrated by the petitioner. Unless those issues are adjudicated,it may not be possible for the High Court to form an opinionthat the reassessment is made on change of opinion. 25. The concept of change of opinion is provided only toavoid multiplicity of proceedings regarding the assessment andtherefore, certain new materials if identified, cannot be fit-inwith the concept of change of opinion. In other words, theAssessing Officer in the event of identifying any new materialduring the subsequent assessment year, then the said materialswould certainly a ground for reopening the previous assessmentand it cannot be construed as change of opinion. If suchcontentions are accepted, then in all such cases, the assesseewill claim that the issue was already adjudicated and thereopening is nothing but change of opinion. Thus, the Courts areexpected to be cautious while considering the ground regardingthe change of opinion raised by the assessee. The change ofopinion has got a limited scope and only in the event of non-availability of any material, reopening is made based on the materials which were already adjudicated, then alone, the groundcan be raised and not otherwise. materials which were already adjudicated, then alone, the groundcan be raised and not otherwise. 26. For instance, with reference to Special Privilege Fee,the sale was adjudicated and scrutinized during the previousassessment year in the present case. The matter went upto ITATand the ITAT passed an order in favour of the petitioner. Underthese circumstances, if the Assessment Officer whilescrutinizing the returns of the year 2010-11, identified newmaterials with reference to Special Privilege Fee, then thereis a reason to believe and accordingly, the notice was issuedunder Section 148 for reopening of the assessment. In suchcircumstances, it cannot be construed that the Special PrivilegeFee was already adjudicated and therefore, any further noticefor reopening amounts to change of opinion. 27. The very ground raised by the petitioner that theAssessing Officer cannot sit on the judgment of the ITATTribunal was considered by the Assistant Commissioner of IncomeTax in its order dated 29.10.2013. While considering thisground, the Assistant Commissioner formed an opinion that "inthe course of the proceedings u/s.143(3) for the assessment year2010-2011, the issue of the special privilege fee paid/payableto the Government of Tamil Nadu was examined in depth and it wasconcluded that the said payment to the Government of Tamil Naduwas nothing but an application of your income which could not beallowed as deduction u/s.37(1) or any other provisions of theIncome Tax Act, 1961 while computing your total income. Withoutprejudice to this stand, an alternative finding was also giventhat instead of paying dividend to the State Government fromyour profit after taxation, the profits of your business issought to be routed back to the State Government by way offrequent revision of the special privilege fee and, thereby, acolourable device has been adopted to evade the legitimatepayment of corporation tax to the coffers of the CentralGovernment". 28. The above findings of the Assistant Commissioner ofIncome Tax is sufficient enough to form an opinion that there isa reason to believe for reopening of the assessment, based onnew materials, which were not scrutinized or considered duringthe earlier assessment year. The observations are strong enoughto form an opinion by the Assessing Officer to reopen theassessment.Further,inthepresentcase,therespondent/Department has followed the mandates of the judgmentof the Hon'ble Supreme Court in the case of GKN Driveshafts(India) Limited. Therefore, there is no perversity or infirmityin respect of reopening of the previous assessment. 29. This being the factum established, this Court donot find any acceptable ground for the purpose of interferingwith the impugned order passed by the respondent and thepetitioner is bound to defend their case by following theprocedures contemplated. It is pertinent to note that the writpetitions are filed in the year 2013 and pending for the pastabout seven years. Under these circumstances, the speedydisposal of the proceedings by the respondents are imminent.Thus, the respondents are directed to proceed with the reopeningof the assessment by following the procedures contemplated asunder the Statute and Rules and conclude the same asexpeditiously as possible preferably within a period of fourmonths from the date of receipt of a copy of this order. 30. With these directions, the writ petitions standdismissed. No costs. s/d- Assistant Registrar True Copy Sub-Assistant Registrar To1. The Chief Commissioner of Income Tax, Chennai-I, 124, MG Road, Chennai-34.2. The Commissioner of Income Tax, Chennai-III, 124, MG Road, Chennai-34. 30. With these directions, the writ petitions standdismissed. No costs. s/d- Assistant Registrar True Copy Sub-Assistant Registrar To1. The Chief Commissioner of Income Tax, Chennai-I, 124, MG Road, Chennai-34.2. The Commissioner of Income Tax, Chennai-III, 124, MG Road, Chennai-34. 3. The Joint Commissioner of Income Tax, Company Circle III (1), 124, MG Road, Chennai-34. 4. The Assistant Commissioner of Income Tax, Company Circle III (1), 124, MG Road,Chennai-34.+2 Ccs M/s. Subbaraya Aiyar Padmanabhan, Advocate sr 23251,23250. +1 CC to M/s. Hema Muralikrishnan, Advocate sr 23072. RR(CO)SP(18/06/2021) W.P.Nos.31937 & 31938 of 2013