9911796707
TMI Blog2011 (11) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were within the knowledge of the Assessing Officer and were placed on the record by the assessee. Thereby, notice u/s 148 is set aside. Decided in favor of the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 September 2006:- "During the previous year ending 31 March 2004, the assessee has entered into memorandum of understanding with Mrs. George Fischer AG Switzerland to settle outstanding balance of their loan account to 4,80,000 Swiss Franc as against the outstanding balance of 8,00,000 Swiss Franc. Thereby the assessee has written back 3,20,000 Swiss Frank equivalent to Rs.1,10,40,000 as the loan not payable. The writing back of a loan doesn't amount the income under provisions of Income Tax Act 1961. The assessee has relied on the decision of Gujarat High Court in the case of CIT v/s. Chetan Chemicals Pvt. Ltd. 267 ITR page 770. The copy of the said decision is enclosed herewith." 6. Apart from this disclosure, in the revised comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial facts necessary for the assessment." 8. The petitioner lodged its objections to the re-opening on 29 August 2011 which have been disposed of by an order dated 9 September 2011. The Assessing Officer has noted that the Petitioner was required to make a full and true disclosure of material facts and by virtue of Explanation 1 to Section 147, the mere production of Books of Account or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer would not necessarily amount to a disclosure within the meaning of the proviso of Section 147. The Assessing Officer has held that the claim of the Petitioner that there was no failure to disclose fully and truly all the facts material to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the Revenue has states before the Court that the Revenue does not intend to file a reply to the Petition, and submissions would be urged on the record before the Court. 11. In the present case, admittedly, the reopening of the assessment is beyond a period of four years of the end of the relevant Assessment Year. The jurisdictional condition under Section 147 in such a case is that there must be a failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment for that Assessment Year. As noted earlier, in the narration of facts, there was a disclosure by the assessee during the course of the assessment proceedings of the fact that (i) During the previous year ending 31 March 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into an MOU with the Swiss Company for settlement of the outstanding loan which was however not offered to tax. Ex-facie, this reason is contrary to the record. This is not a fact which has subsequently come to notice but is something which was within the knowledge of the Assessing Officer. The Revenue has not either by filing an affidavit or in the submissions of Counsel disputed that a disclosure was made in the assessee's letter dated 14 September 2006. Explanation 1 to Section 147 which is sought to be relied upon by the Assessing Officer has no application. This is not a case where an assessee has merely produced account books and other evidence from which material evidence could have with due diligence been gathered by the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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