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TMI Blog2012 (8) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the assessment proceedings any other head of escaped income not mentioned in the reasons for reopening - in favour of assessee. - 15468 of 2010 - - - Dated:- 8-3-2011 - AKIL KURESHI, SONIA GOKANI MS., JJ. JUDGMENT Akil Kureshi J.- 1. The petition was heard for final disposal at the admission stage with the consent of learned advocates for the parties. 2. The petitioner-assessee has challenged a notice dated March 8, 2010, for reopening of assessment for the assessment year 2004-05. Along with the notice, the petitioner was served with a copy of reasons for reopening of the assessment recorded by the Assessing Officer. The petitioner questions the legality of such communication on various grounds. 3. The facts in brief are as follows : 3.1 For the assessment year 2004-05, the petitioner company filed the return by declaring income of Rs. 3,17,30,999 on November 1, 2004. The case of the petitioner was taken in scrutiny assessment by the Assessing Officer under section 143(3) of the Income-tax Act, 1961. On December 29, 2006, the Assessing Officer assessed the income of the petitioner at Rs. 8,38,88,973. The assessment order originally framed is produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue is regarding deemed dividend in the hands of the assessee-company. 3.5 At this stage, we may briefly notice that the second issue referred by the Assessing Officer in his order disposing of the objections of the petitioner was not part of the reasons recorded for reopening the assessment. To this aspect of the matter, we may advert to at a later stage. Suffice it to say, the Assessing Officer turned down various objections raised by the petitioner. The assessee was directed to furnish reply on the merits, if any, by December 9, 2010. 3.6 The assessee instead of filing such a reply, approached this court, filed the present petition and challenged the reopening of notice. 4. From the facts on record, it emerges indisputably that an assessment already framed under section 143(3) of the Act is sought to be reopened after four years of the end of the assessment year. In view of the provisions contained in section 147 of the Act, such reopening can be permitted only if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment and that such escapement of assessment was on account of failure on the part of the assessee to file retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome has escaped assessment and such escapement of income was on account of non-filing of the return by the assessee or failure on his part to disclose fully and truly all material facts necessary for assessment would not be conclusive. Nor absence of any such statement would be fatal, if on the basis of reasons recorded, it can be culled out that there were sufficient grounds for the Assessing Officer to hold such beliefs ; (v) such reasons must emerge from the reasons recorded by the Assessing Officer and cannot be supplied through an affidavit filed before the court. However, the Gujarat High Court in the case of Aayojan Developers v. ITO [2011] 335 ITR 234 (Guj) has accepted the view that to elaborate such reasons already recorded, reference would be permissible to the affidavit filed by the Department before the court ; (vi) what would amount to true and full disclosure of all material facts must depend on each case and no strait jacket formula of universal application can be provided. It can, however, safely be stated that the duty of the assessee is to disclose primary facts and it is not his duty to lead the Assessing Officer to any particular inference of fact or of law o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose material facts, income had escaped assessment. He con- tended that the assessee had himself agreed that additions be made under the heading of section 80HHC but disputed only recomputation of deemed dividend income. The petition is, therefore, required to be dismissed. 12. Having thus heard learned advocates for the parties and having perused the record, first and the foremost, we find that the reasons for reopening the assessment do not make out any case of escapement of income from assessment on account of the assessee not disclosing fully and truly all material facts necessary for the assessment. Quite apart from the fact that, no such suggestion is recorded in the reasons, independently also we do not find that the Assessing Officer's stand in the reasons recorded can in any manner be construed as suggesting that the income escaped assessment on account of the assessee not disclosing the material facts. 13. As already noted, reasons for reopening stated that on verification of the records it is seen that the enhanced figure of profits of business of Rs.3,84,56,031 taken was not reduced while giving effect to the order of the Commissioner of Income-tax (Appeals) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding goods, the Assessing Officer worked out reduction of Rs. 8,69,403. It may be that due to some error he did not account for this sum in final calculation. This aspect clearly emerges from the assessment order, the relevant portion of which is reproduced below : "4. Calculation of deduction under section 80HHC(3)(c)(i) in respect of export of manufacturing goods. Adjusted profit of the business X Adjusted export turnover Adjusted total turnover (a) Here the adjusted profit of the business means : profit of the business-profit derived from export of trading goods. 3,26,59,948 (-) nil = 3,26,59,948 (b) Adjusted export turnover = Export turnover- Export turnover in respect of trading goods = 19,58,89,672- 2,28,98,972 = 17,29,90,700 (c) Adjusted total turnover = Total turnover- Export turnover of buss. in respect of trading goods. = 51,97,79,362-2,28,98,972 = 49,68,80,390 Deduction under section 80HHC(3)(c)(i) Adjusted profit of the business X Adjusted export turnover Adjusted total turnover 5. Calculation of deduction under section 80HHC(3)(c)(ii) in respect of export of trading goods is wor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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