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TMI Blog2015 (2) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the Assessing Officer on January 20, 2004. It was not signed by the Assessing Officer. The reasons recorded by the Assessing Officer were typed, as is clear from the printout of the original reasons, on February 4, 2004. The typed date was struck off with pen and the date January 30, 2004, was written by hand with the same pen. Though the original date (typed) was struck off with pen still the typed date is visible/could be read or is clearly seen, and it was typed as February 4, 2004. The typed date or the date of print out was February 4, 2004, and that it was changed to January 30, 2004, as the date of reasons recorded under sub-section (2) of section 148 of the Act. Thus, the record was set right by showing that the date of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Baldwin Girls High School and five appeals were filed by the Revenue, namely, I. T. A. Nos. 1111-1115 of 2006. The Tribunal allowed the appeals filed by the assessees in part and dismissed the appeals filed by the Revenue. Hence, the Revenue has filed the instant thirteen appeals. 2. The assessees are the trust, which run educational institutions. For all the relevant assessment years they declared their income nil , claiming exemption under section 10(23C)(vi) of the Income-tax Act, 1961 (for short the Act ). The assessments completed were reopened under section 147 on the ground that the assessees were not registered under section 12A nor had requisite approval under section 10(23C)(vi) of the Act. In response to the notice und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have heard the learned counsel for the parties on this question and with their assistance gone through the orders passed by the Tribunal and the authorities below and so also the original records placed for our consideration. 5. Mr. Shankar, learned counsel appearing for the assessees, at the outset, invited our attention to the provisions contained in section 148 of the Act and submitted that it was mandatory for the Assessing Officer under sub- section (2) of section 148 of the Act to record reasons before issuing the notice under this provision and since the notice was issued without recording the reasons, the whole proceedings of reopening of the assessment would vitiate. He invited our attention to the observations made by the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons since it was wrongly typed as February 4, 2004, instead of January 30, 2004. Therefore, he submitted that it cannot be inferred that the reasons were not recorded before issuing notice under section 148 of the Act. He placed the original record before us for our perusal in support of his contention. 7. Section 148 of the Act provides for issue of notice where the income has escaped assessment. Sub-section (2) of section 148 of the Act provides that the Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so. In view of this provision, no dispute was raised before us about the procedure contemplated under this provision. From a bare perusal of section 148 of the Act, it is clear as cry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer. Neither in the order of the Assessing Officer nor in the order of the Commissioner of Income-tax (Appeals) an attempt was made to explain striking off the original date and writing the date January 30, 2004, by hand. It was possible for the Assessing Officer to place an affidavit of the typist on record explaining the purported error committed by him while typing the reasons recorded by the Assessing Officer. On a perusal of the original records, we are satisfied that the reasons were prepared on February 4, 2004, whereas the notice was sent on January 30, 2004. It is also pertinent to note that the contents of the draft reasons and the original reasons recorded by the Assessing Officer do not tally. It would be relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assumption of juris diction for reopening of assessment is based on a notice, which itself hinged firmly on the reasons recorded. The Tribunal in its decision dated October 28, 2005, drew its conclusion from the decision of the Rajasthan High Court in CIT v. Shiv Ratan Soni [2005] 279 ITR 261 (Raj) ; [2005] 194 CTR (Raj) 126, wherein the court ruled that if the facts show that the reasons were not recorded before the issue of notice under section 148 but afterwards, then the assessment is bad and has to be cancelled. The Department did not provide any material or document that the computer printout of the reasons recorded, though has taken on February 4, 2004, but it was based on the note containing the reasons recorded on January ..... X X X X Extracts X X X X X X X X Extracts X X X X
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