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TMI Blog2014 (10) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee had failed to disclose fully and truly all material facts necessary for its assessment so as to vest in the AO the jurisdiction to reopen its assessment after the expiry of a period of four years from the end of the AY by invoking the proviso to section 147 of the Act - the reopening of assessment u/s 147 of the Act is without any authority of law - The assumption of jurisdiction on the part of the AO is without authority of law and it is not necessary to enter into the larger question as to whether or not the petitioner could have validly made such claim u/s 32(1)(iia) of the Act – thus, the notice issued u/s 148 is to be set aside – Decided in favour of assessee. - Special Civil Application No. 8693 of 2014 - - - Dated:- 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the petitioner by a communication dated 31.03.2014 requested the respondent to treat the original return of income as return of income in response to the said notice and also requested for a copy of the reasons recorded. On 10.04.2014 a copy of the reasons came to be furnished to the petitioner, whereupon the petitioner by a communication dated 15th April, 2014, objected to the reassessment proceedings. By an order dated 16th April, 2014, the respondent rejected the objections raised by the petitioner. Being aggrieved the petitioner has filed the present petition. 3. Mr. Hardik Vora, learned advocate for the petitioner submitted that the notice under section 148 of the Act has been issued on 27th March, 2014 in relation to assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ened, it was submitted that this court in the case of Commissioner of Income-tax-I v. Diamines Chemicals Ltd., 221 Taxman 218 (Gujarat), has dismissed the appeal preferred by the Revenue against the order of the Income Tax Appellate Tribunal and has upheld the deduction claimed under section 32(1)(iia) of the Act in relation to the wind-mill. It was, accordingly, urged that in the above facts and circumstances, the Assessing Officer could not have formed the belief that income chargeable to tax has escaped assessment as the petitioner had claimed additional depreciation on wind-mill and that the assumption of jurisdiction on the part of the Assessing Officer being invalid, the impugned notice deserves to be quashed and set aside. 5. Ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question. 6. Since the assessment for assessment year 2008-09 is sought to be reopened by issuance of a notice dated 27th March, 2014 under section 148 of the Act, that is after a period of four years from the end of the relevant year, the proviso to section 147 of the Act would be clearly attracted, and the Assessing Officer is required to establish that income chargeable to tax has escaped assessment due to failure on the part of the petitioner-assessee in disclosing fully and truly all material facts necessary for its assessment. In this regard, a perusal of the record of the case reveals that the petitioner along with the return of income had submitted the necessary statements including the Tax Audit Report as required under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e wrong claim, in the opinion of this court cannot be said to amount to failure to disclose fully and truly all material facts, more so, when in the facts of the present case all relevant facts were disclosed in the return of income and the documents accompanying the same. Besides a perusal of the assessment order passed under section 143(3) of the Act reveals that the record of the case was not bulky and the assessment was limited to a few issues only. Therefore, it was not as if the Assessing Officer was required to wade through a sea of documents for the purpose of framing the assessment so as not to notice the claim made by the petitioner. Therefore, by no stretch of imagination can it be said that the petitioner had failed to disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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