9911796707
TMI Blog2012 (7) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 of the Income Tax Act, 1961 (hereinafter referred to as the "Act") seeking to reopen the assessment of the petitioner for assessment years 2002-03 and 2003-04 respectively. 3. The petitioner is a Private Limited Company manufacturing aluminum conductors. The facts, in relation to Special Civil Application No. 12513 of 2009, are that for the assessment year 2002-03, the petitioner filed its return of income on 31.10.2002 in respect of its two units, viz. Vatva unit and Silvassa unit. Out of the two units, the Vatva unit was not eligible for deduction under section 80 IB of the Act whereas the Silvasa Unit was eligible for such deduction. For the year under consideration, since book profit of the petitioner was more than the total income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t came to be furnished to the petitioner, which read as under: "In this case, the return of income was filed on 31.10.2002 declaring total income of Rs. Nil. The return of income was processed u/s. 143(1) on 24.02.2003 after that the case was reopened u/s. 147 of the I.T. Act 1961 recording the reasons that the assessee has claimed deduction u/s. 80 IB without considering unabsorbed loss and depreciation of assessment year 2001-02. Accordingly the assessment u/s. 143(3) r.w.s. 147 of the I.T. Act 1961 was completed on 28.02.2006 determining the total income of Rs. 19,500/-. On verification of return of income for A.Y. 2002-03 it is found that the assessee company has other income amounting to Rs. 25,50,612/-, which is not eligible for ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , out of which, the Silvasa unit alone was eligible for deduction under section 80 IB of the Act. Since the book profit was more than the total income, the petitioner had submitted in the return the MAT calculation under section 115 JB on book profit of Rs. 1,44,33,148/-. The return came to be accepted by an intimation dated 30.09.04 under section 143(1) of the Act. Thereafter the Assessing Officer issued notice under section 143(2) of the Act on framed assessment by an order dated 31.03.2006 wherein the Assessing Officer scrutinized the claim in respect of deduction under section 80 IB for the Silvasa Unit and partly disallowed some portion of it. Subsequently, by the impugned notice dated 12.09.2008, the assessment for the assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears from the end of the relevant assessment year without there being any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment, thereby rendering the reopening of assessment, after the expiry of a period of four years invalid. Elaborating upon the said submission the learned counsel made reference to the reasons recorded to submit that the Assessing Officer has himself recorded that the reopening is based upon verification of the return of income filed by the petitioner. Thus, it is not as if, the assessment is sought to be reopened on the basis of any material which the petitioner had failed to disclose and which the Assessing Officer has discovered subsequently, but that on veri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts are not in dispute. The impugned notices have been issued on 12.09.2008 in relation to assessment years 2002-03 and 2003-04 respectively, which are clearly beyond a period of four years from the end of the relevant assessment years. Under the circumstances, for the purpose of assuming valid jurisdiction under section 147 of the Act, the Assessing Officer is required to form the belief that income chargeable to tax has escaped assessment; and that such escapement is by reason of failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment years under consideration. In this regard, a perusal of the reasons recorded shows that the assessment is sought to be reopene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act and thereby allowed excess deduction which had resulted into escapement of income chargeable to tax. 10. In light of the aforesaid facts, it is abundantly clear that there is nothing whatsoever on record to indicate that there was any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment years under consideration on account of which income chargeable to tax has escaped assessment. Under the circumstances, the assumption of jurisdiction under section 147 of the Act by the Assessing Officer is without authority of law and as such, the impugned notices under section 148 of the Act cannot be sustained. 11. For the foregoing reasons, the petitions succeed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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