9911796707
TMI Blog2008 (6) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... acies and rendering consultancy services. The return for asst. yr. 1996-97 was filed on 28th Nov., 1996, showing total income of Rs. 4,94,55,160. Subsequently, a revised return was filed on 8th Oct., 1997 in which the total income was shown at Rs. 3,80,80,520. In the assessment order passed under s. 143(3) on 30th March, 1999, the total income was assessed at Rs. 4,49,18,040. This assessment order was revised under s. 154 on 18th Aug., 1999 recomputing the total income at Rs. 4,28,92,170. 3. The AO initiated proceedings under s. 147 of the Act by issue of notice under s. 148 on 31st March, 2003. In the reassessment order passed under s. 147 on 23rd March, 2005, the total income was assessed at Rs. 4,69,09,874. The CIT(A) allowed part reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee before the CIT(A) also through ground No. 2 as under: "2. The learned AO has erred by reopening the assessment under s. 147." 8. The CIT(A) rejected the above ground for the reasons given in para 4.4 of his order as under: "4.4 I have carefully considered the submissions of the appellant. The first reason recorded for the reopening is that the appellant was allowed depreciation on windmill for the asst. yr. 1997-98. On the same windmill depreciation was claimed and allowed in the original assessment for the asst. yr. 1996-97 and the same is to be withdrawn. Though the issue for the asst. yr. 1997-98 was decided in favour of the appellant in the first appeal, the said decision was rendered only in October, 2003. On the date of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts need not be the basis for initiating the proceedings and they can be commenced if the AO has reason to believe that the income has escaped assessment notwithstanding that there was full disclosure of material facts on record. The assessee in such cases cannot defend the initiation of action on the ground that the facts were already placed on record and that the AO must have or ought to have considered them. The power to make assessment or reassessment, where the initiation has been made within four years of the end of the relevant assessment year, would be attracted even in cases where there has been a complete disclosure of all relevant facts upon which a correct assessment might have been based in the first instance, and whether it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso." 10.5 It is seen that the proviso to s. 147 has in a way followed the criteria laid down in the pre-1989 s. 147(a) as it stood upto 31st March, 1989. In order to be able to initiate the proceeding under the post-1989 s. 147, after the expiry of four years from the end of the relevant assessment year, the onus will be on the AO to establish that the assessee had failed to disclose fully and truly certain facts, material to the assessment of income which had escaped assessment. In other words, the cases sought to be brought within the proviso to s. 147 should strictly fall within that provision and it is for the Department to show that the necessary conditions for the exercise of the jurisdiction are fully present. There cannot be an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r s. 147, if the fresh facts are not primary facts which existed at the time of assessment and which the assessee was under duty to disclose. 11. In the present case, initially, the AO mentioned three items-depreciation in respect of 'windmill', depreciation in respect of MRI, and computation of deduction under s. 80-O. Later, the first point regarding depreciation in respect of 'windmill' was dropped by the AO himself. The other two points appear to have arisen as result of a reconsideration or a change of opinion. The AO has not mentioned precisely, as to what material facts, which were necessary for assessment, the assessee had failed to disclose fully and truly. In fact there is not a whisper about any such failure on the part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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