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TMI Blog1983 (12) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... ent disallowing the excess claim of Rs. 19,218. The assessee appealed before the CIT (Appeals) against the assessment order. The CIT (Appeals) concurred with the ITO. 2. Aggrieved, the assessee has come up in appeal to the Tribunal. The question for consideration is whether there was any subsequent information to the ITO that on account of allowing the entire claim in respect of the remuneration paid to the Managing Director, income had escaped assessment. We have heard Shri Ruhela, senior departmental representative and Shri Mangal, ld. Representative for the assessee, Shri Ruhela read out the reasons recorded by the ITO. No information as such has been stated in the reasons recorded by the ITO. The question, therefore, is whether withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITO; (iii) where the information is derived from a external source of any kind; and (iv) where the information may be obtained even from the record of the original assessment from an investigation of the material on the record, or, the facts disclosed thereby or from other enquiry or research into facts or law. Relying on test No. 2 supra, Shri Ruhela argues that according to the Supreme Court, where income liable to tax has escaped assessment due to oversight or a mistake committed by the ITO, the latter was justified in initiating reassessment proceeding u/s 147(b). We do not agree with Shri Ruhela. The order of the Supreme Court has to be read as a whole to understand the correct ratio thereof. After pointing out the four tests, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vations reproduced above and from the meticulous scrutiny of the whole decision, it clearly appears that Supreme Court has not dispended with precedent condition is the existence of information to reopen the assessment u/s 147(b). Not only this, the Supreme Court itself pointed out additional facts constituting the information justifying the re-opening. We are, therefore, not in agreement with Shri Ruhela that s. 147(b) can be invoked without any information merely on the ground that income liable to tax has escaped assessment due to oversight, inadvertence or a mistake committed by the ITO. To invoke s. 147(B), information is a precedent condition and that has to be established as a fact in all the cases. In the instant case, no informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1978 and issued a notice u/s 148 on 20th April 1978, meaning thereby, with a gap of about 15 days. The CIT (Appeals) has not pointed out in his order that in the intervening period the ITO received any information that income has escaped assessment due to the reason that claim for remuneration to the Managing Director was allowed in excess. Shri Ruhela submits that it is patently clear from s. 40(C) that there was a ceiling of Rs. 72,000 for the Director s remuneration. If the provision is so clear and patent, then if the law permits, the ITO would have rectified the mistake u/s 154, but if he wants to reopen the assessment u/s 147(b), then information has to be established. No information having been established, in this case within the me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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