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TMI Blog2014 (11) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of 4 years from the end of the relevant assessment year. In view of the first proviso to Section 147 of the Act before issuing a notice beyond the period of 4 years from the end of the relevant assessment year there should have been a failure on the part of the petitioner to fully and truly disclose all material facts necessary for assessment for the assessment year being sought to be reopened. Keeping in mind the above well settled position in law we shall now examine the two petitions. 3) As the facts and law are identical in both the petitions we shall for the sake of convenience refer to the facts in W. P. No.2637 of 2007 which are as under: a) On 26 February 2002, the petitioner filed its revised return of income for Assessment Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o furnish details in support of your claim of exemption u/s.80IA. You had furnished expenses as per which it has been observed that there is a disproportionate allocation of expenses between the various units eligible and those not eligible for deduction u/s. 80IA. IN view of the above,the Assessing Officer has reopened your proceedings u/s.148,the reasons for which are being provided to you as under: The assessee in this case filed Return of Income on 27/11/2000 declaring income of Rs. 13,09,27,170/-. The assessment was completed u/s. 143(3) on 31/1/2003, assessing the income at Rs. 13,79,33,840/-. The assessed income was thereafter reduced to Rs. 13,34,18,563/after decision on assessee's appeal by CIT(A). The assessee company is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atio of turnover 54.35% Rs. 2,39,34,657/- Rs. 1,24,64,986/- Excess Misc. Expenses allotted to non 80IA unit (2-3) Rs.56,78,621/- The profits of 80IA unit needs to be reduced by Rs. 56,78,621/- and accordingly corresponding 80IA deduction @ 30% i.e. Rs. 17,03,586/- needs to be reduced. In view of the above facts, I have reason to believe that the assessee's income has been escaped assessment and accordingly request for permission u/s.151(1) to issue notice u/s.148 in this case." c) The petitioner by its letter dated 29 August 2007 objected to the impugned notice and inter alia pointed out that the reasons do not indicate any failure on the part of the petitioner to disclose truly and fully all material facts necessary for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary for assessment for that assessment year. In this case, as is evident from the letter dated 6 August 2007 containing the reasons, it is clear that even according to the Assessing officer the petitioner had furnished the details in support of its claim under Section 80IA of the Act and the same were subject of examination before passing assessment order dated 31 January 2003 under Section 143(3) of the Act. In the circumstances, according to the Assessing Officer himself there was due application of mind on the part of the Assessing officer while passing an order under Section 143(3) of the Act and seeking to reopen the assessment on the same facts would amount to change of opinion. Moreover, the other condition precedent as found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r states that whenever a notice beyond the period of 4 years from the end of the relevant Assessment Year is issued, it is implicit in such a notice that there was failure on the part of the assessee to fully and truly disclose all material facts necessary for assessment. The condition precedent to issue a notice beyond the period of 4 years is prima facie satisfaction on the part of the Assessing Officer that there has been failure to disclose truly and fully all material facts necessary for assessment. Thus, it requires application of mind by the Assessing officer before he issues notice for reopening the assessment which is done after recording his reasons. It is the reasons which indicate not only the application of mind but also the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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