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TMI Blog2016 (9) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... e, would undoubtedly tantamount to a change of opinion, which is not permitted by law. - W. P. No. 2148 of 2015 - - - Dated:- 16-8-2016 - V. Ramasubramanian And Smt. Anis, JJ. For the Petitioner : Y. Ratnakar For the Respondent : B. Narasimha Sarma ORDER ( Per V. Ramasubramanian, J. ) The petitioner has come up with the above writ petition challenging a notice dated 26-03-2014 issued under Section 148 of the Income Tax Act, 1961, for reopening the assessment for the year 2008-2009. 2. Heard Sri Y. Ratnakar, learned counsel for the petitioner and Sri Narasimha Sarma, learned senior standing counsel for the respondents. 3. The petitioner/assessee filed a return of income for the Assessment Year 2008-09 on 30-09- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Assessing Officer on 30-01-2015. 7. After appearing before the Assessing Officer on 30-01-2015 the petitioner came up with the above writ petition challenging the very reopening of assessment under the notice dated 26-04-2014. This Court, while ordering notice before admission in the writ petition on 05.02.2015, permitted the Assessing Officer to complete the reassessment, but not to give effect to the same, until further orders of this Court. 8. But It appears that by the time this court passed the said order, the assessing officer had already completed the assessment on 31-01-2015. 9. Therefore, despite the interim order passed by this court, the Assessing officer communicated the assessment order dated 31- 01-2015 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation of the principles of natural justice. 11. In the case on hand, the petitioner challenges the very initiation of proceedings for reopening of assessment, as being without jurisdiction and also in complete defiance of the statutory prescriptions. Therefore, this is not a case, which can be thrown out on the ground of availability of alternative remedy. 12. Coming to the merits of the case, the reopening of assessment had happened in this case, admittedly after 4 years. This is also a case where an assessment under sub-section (3) of Section 143 had already been made on 31-12-2010 for the relevant Assessment Year. Therefore, by virtue of the proviso to Section 147, no action could have been taken, after the expiry of 4 years from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll disclosure; 2) to make a true disclosure and 3) to ensure that such true and full disclosure is of material facts necessary for the assessment. A clear signal is sent to the assessee by Explanation 1 that the mere production of books of accounts or other evidence before the Assessing Officer will not be treated as a disclosure. In other words, a distinction is sought to be made between production of materials and disclosure of materials. 16. Such a distinction between a mere production of materials and a true and full disclosure of materials is sought to be maintained on account of the fact that under the Act, an Assessing Officer has now power of review. This is why the Supreme Court clarified in Commissioner of Income Tax vs. Kelvin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But the answer is not too difficult to find out. It is only to safeguard the interests of the Revenue in cases of this nature that an express power is conferred upon the Commissioners under Section 263 of the Act. 20. Therefore, what is important in cases of this nature where a challenge is made to the reopening of assessment, is to see (1) whether there was a true and full disclosure of all materials or (2) whether there was a mere production of materials. 21. As pointed out by the Constitution Bench of the Supreme Court in Calcutta Discount Co. Ltd., v. Income Tax Officer and another 41 ITR 191, the duty of the assessee stops with a true and full disclosure and does not extend to assisting the Assessing Officer with the inferences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indication to the following effect: The information was called and questioned that why the profit on sale of land not offered to tax though disclosed in the return and asked for to substantiate its claim that the said profit is not taxable income. The assessee was also issued a letter calling for information and produce books of accounts, bank statements, vouchers/bills etc. The AR of the assessee, Sri Syed Mansoor, CA, appeared from time to time and produced books of accounts with relevant vouchers/bills etc. and the information with regard to land details etc. After examining the books of accounts and other details at length, the case was discussed with the AR of the assessee. However, upon verification of the balance sheet, the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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