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TMI Blog2013 (11) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by Ld CIT(A), Trivandrum and it relates to the assessment year 2004-05. The reopening of assessment, having been held by Ld CIT(A) as invalid, the revenue has filed this appeal before us. The appeal filed by the revenue is barred by limitation by one day. The revenue has filed a petition requesting the bench to condone the delay. We heard the parties on this preliminary issue. Having regard to the submissions made in the petition, we condone the delay and admit the appeal for hearing. 2. The facts relating to the issue under consideration are stated in brief. The assessee filed its return of income for the year under consideration on 23.12.2004. The assessment was completed u/s 143(3) of the Act on 22.12.2006. Subsequently, the assessment was reopened by issuing notice u/s 148 of the Act on 27.3.2009 and the reopened assessment was completed on 15.12.2009. At the time of filing return of income in response to the notice issued u/s 148 of the Act, the assessee sought the reasons for reopening of assessment. It appears that the AO completed the assessment without furnishing the reasons. Hence the assessee filed a writ petition challenging the assessment order before the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see wins on this ground." Since the Ld CIT(A) had quashed the assessment proceedings on legal ground, he did not decide the issues urged on merits of additions. It is pertinent to note that the department did not file any appeal before the Tribunal challenging the order passed by Ld CIT(A). 4. Thereafter, the AO again re-opened the assessment by issuing a notice u/s 148 of the Act on 23.3.2011. It is pertinent to note that four years had elapsed by the time, the second reopening was made. The observations made by the AO in the assessment order dated 30.11.2011 are extracted below:- "2. However, there was a failure on the part of the assessee to furnish a true and full disclosure of income in the return of income or statement of total income as required in the Income tax Act and taxable income chargeable to income tax. There is reason to believe that income chargeable to tax has escaped assessment. Hence, after recording reasons for the escapement of income, the assessment was once again reopened u/s 147 by issuing a notice u/s 148 on 23.3.2011. On the request of the assessee the reason for reopening the assessment were communicated to the assessee on 18-08-2011. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to the notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year." Thus, the AO has to show that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment, if he wants to take action for reopening of assessment after the expiry of four years from the end of the relevant assessment year, if the earlier assessment of the said year was completed either u/s 143(3) of sec. 147 of the Act. 8. We notice that the Ld CIT(A) has given a clear finding that there was no failure on the part of the assessee in this regard. For the sake of convenience, we extract below the observations made and the decision taken by Ld CIT(A) on this issue:- "10.0 It is seen from the submission of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losure of income in the return of income or statement of total income as required in the Income Tax Act, taxable income to the extent of Rs.55,01,896 has escaped assessment. However, it is seen from the Form for recording reasons for initiating proceedings u/s. 148 and for obtaining the approval of the CIT, Tvm, the AO has given the under mentioned reasons: "Reasons for the belief that income has escaped assessment: As per Form 3CD, the assessee has paid Rs.16,89,440/- in cash. 20% of the same was be disallowed u/s. 40A(3) but only Rs.42828 was disallowed in the assessment completed u/s. 143(3). Balance Rs.295060/- is also to be disallowed. Again the following payments made by the assessee to non residents outside India are made without deduction TDS. Hence are to be disallowed u/s. 409a)(ia): Rs.36,61,541/- Rs. 5,56,370/- Rs. 48,975/- Rs. 9,40,050/-" 10.2 Further, it is seen from the order sheet that the Assessing officer has recorded under mentioned reasons vide order sheet entry dated 17.3.2011 (signed on 18.3.2011) "17.3.2011 The 'a' has paid Rs.16,89,440 in cash, 20% of the same was to be disallowed u/s. 40A(3) but only Rs.42,828/- was disallowed. The payments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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