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TMI Blog2015 (9) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed on 19.12.2008. On verification of the case records, it is seen that the assessee has already claimed 30% Standard Deduction out of the rental income shown during the four years on Rs. 32,63,499/-. It has also seen that the assessee has similar amount shown of Rs. 12,75,783/- in schedule of Sundry Debtors in the name of M/s Panchjanya Institute of Commerce and Management Studies as on 31.03.2006. Though the amount is same, name of party i.e. sundry debtor is different in as much as that as per rent lease agreement, the lessee is Panchajanya Education and Research Trust. There is also question under which accounting system, the said claim of deduction on account of unrealised rent is being made. The assessee has not either made any provision for bad debts or it has not written it off from the books of accounts because, the said mount of Rs. 12,75,783/- is very much appearing in the account of the sundry debtor as per schedule 6 of the balance sheet s on 31.03.2006." 4. Aggrieved, inter alia, by reopening of the assessment itself, assessee carried the matter in appeal before the ld. CIT(A) but without any success. While rejecting the grievance of the assessee, learned CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready on record if the reopening is within four year of the end of the assessment year. This is particularly true if the assessing Officer has not made any opinion or has not considered a particular item at the time of passing of original assessment order. This is evident from the following parts of the judgement of honourable Gujarat High Court in the case of Praful Chunill Patel, [1999] 236 ITR 832 (GUJ.) : "In cases where the Assessing Officer has not made an assessment of any item of income chargeable to tax while passing the assessment order in the relevant assessment year, it cannot be said that such income was subjected to an assessment. In the assessment proceedings, the Assessing Officer would ascertain on consideration of all relevant circumstances the amount of tax chargeable to a given taxpayer. The word "assessment" would mean the ascertainment of the amount of taxable income and of the tax payable thereon. In other word, where there is no ascertaining of the amount of taxable income and the tax payable thereon, it can never be said that such income was assessed. Merely because during the assessment proceedings the relevant material was on record or could have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has escaped assessment and without anything more beyond such finding or discovery, he can initiate the proceedings under section 147 of the Act. On a proper interpretation of section 147 of the Act, it would appear that the power to make assessment or reassessment within four years of the end of the relevant assessment year would be attracted even in cases where there has been a complete disclosure of all relevant facts upon which a correct assessment might have been based in the first instance, and whether it is an error of fact or law that has been discovered or found out justifying the belief required to initiate the proceedings. In our view, the word "escaped assessment" where the return is filed, are apt to cover the case of discovery of a mistake in the assessment caused by either an erroneous construction of the transaction or due to its non-consideration, or, caused by a mistake of law applicable to such transfer or transaction even where there has been a complete disclosure of all relevant fact upon which a correct assessment could have been based. In cases where the Assessing Officer had overlooked something at the first assessment, there can, in our opinion, be no q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind for ascertainment of the amount of taxable income and of the tax payable thereon, then in the absence of any error or mistake being discovered or found, the Assessing Officer later on cannot, merely for the sake of giving a different opinion, change the earlier opinion. It is on the basis that reopening is justified. However, even after referring to this decision, Hon'ble jurisdictional High Court has, in the case of Raymon Glues and Chemicals vs. DCIT [(2015) 55 Taxman.com 421 (Guj)] has held that the Assessing Officer cannot sit in judgement over decision of the earlier Assessing Officer who passed order under section 143(3) of the Act with respect to the issues which are sought to be covered by the reopening under section 147 of the Act. While holding so, Their Lordships have, inter alia, observed as follows :- "9. We have heard learned counsel for both the sides and perused the record of the case. While disposing of the appeal filed by the Revenue, the Tribunal observed in Para-4.4 as under; "4.4 The gist of reasons recorded were furnished by Assessing Officer to the assessee vide his letter dated 22.12.1995. The reasons for reopening were duly recorded by A.O. The ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Assessing Officer who had passed the original order u/s.143(3) of the Act. The information regarding the assessee's claim u/s.80-HHC was also filed along with the return of income in the form of Chartered Accountant's Certificate, which was also referred to by the A.O in his order u/s.143(3) r.w.s. 147 of the Act. 12. At this stage, it would be relevant to refer the provisions of Sections 143(1), 143(3) and 147 of the Act, which read thus; (1) '143. Assessment - Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, such return shall be processed in the following manner, namely:- (a) the total income or loss shall be computed after making the following adjustments, namely:- (i) any arithmetical error in the return; or (ii) an incorrect claim, if such incorrect claim is apparent from any information in the return; (b) the tax and interest, if any, shall be computed on the basis of the total income computed under clause (a); (c) the sum payable by, or the amount of refund due to, the assessee shall be determined after adjustment of the tax and interest, if any, computed under clause(b) by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2), or as soon afterwards as may be, after hearing such evidence as the assessee may produce and such other evidence as the Assessing Officer may required on specified points, and after taking into account all relevant material which he has gathered, the Assessing Officer shall, by an order in writing, make an assessment of the total income or loss of the assessee, and determine the sum payable by him or refund of any amount due to him on the basis of such assessment: ..." 147. Income escaping assessment. If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) : Provided that where an assessment under sub-section (3) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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