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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 respondents. 3. The petitioner/assessee filed a return of income for the Assessment Year 2008-09 on 30-09-2008, admitting (i) a loss of Rs. 1,98,26,817/- and (ii) a profit on sale of land to the tune of Rs. 14,35,77,640/-. The assessment was completed under Section 143 (3) of the Act on 31-12-2010. The total loss was determined at Rs. 1,87,83,175/-. 4. Thereafter, a notice dated 26-03-2014 was issued under Section 148 of the Act by the Deputy Commissioner of Income Tax, claiming that he had reason to believe that the petitioners income chargeable to tax for the Assessment Year 2008-09, had escaped assessment within the meaning of Section 147of the Act and that therefore, the petitioner should deliver the return in the prescribed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by this court, the Assessing officer communicated the assessment order dated 31- 01-2015 and the petitioner appears to have filed a statutory appeal on 09-03-2015, so that they do not miss the bus, in the event of the writ petition being decided against them. 10. In the light of the above developments, a preliminary objection is taken by Sri Narasimha Sarma, learned senior Standing Counsel for the department, on the basis of the decisions of the Supreme Court in Commissioner of Income Tax and others v. Chabbil Agrawal (2014) 1 SCC 603 and Ess Ess Kay Engineering Company Limited v. Commissioner of Income Tax 247 ITR 818 that the writ petition deserves to be dismissed on the ground of availability of alternative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, by virtue of the proviso to Section 147, no action could have been taken, after the expiry of 4 years from the end of the relevant Assessment Year, unless any income chargeable to tax has escaped assessment, by reason of any one of the 3 contingencies viz., a) failure on the part of the assessee, to make a return under Section 139; b) failure on the part of the assessee to make a return response to a notice under Section 142 (1) or under Section 148; and c) failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. 13. It is neither the case of the Assessing Officer nor that of the learned senior Standing Counsel that the present case would fall under the first or the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer has now power of review. This is why the Supreme Court clarified in Commissioner of Income Tax vs. Kelvinator India Ltd. 2010 320 ITR 561, that though the power to reopen assessment, after the Direct Tax Laws (Amendment) Act, 1987 was much wider, Section 147 cannot be taken to confer arbitrary powers to reopen assessment on the basis of mere change of opinion. 17. The question of change of opinion would arise only if there had been a formation of opinion in the first instance. It is not necessary that upon mere production of material evidence, a formation of opinion or the possibility of formation of an opinion could inevitably happen. But, on the contrary, upon disclosure of material facts, fully and truly, the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee stops with a true and full disclosure and does not extend to assisting the Assessing Officer with the inferences that could be drawn from out of what was disclosed. 22. Explanation 1, as pointed out by the Supreme Court in Commissioner of Income Tax, Calcutta v. Burlop Dealers Limited 41 ITR 191 (SC), does not impose an onerous obligation upon the assessee. It merely clarifies what could not be treated as true and full disclosure. 23. Therefore, keeping the fundamental distinction between what is mere production of material facts and what tantamounts to a true and full disclosure, let us now come back to the facts of the present case. 24. It is the positive case of the petitioner that during the course of initial assessment proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase was discussed with the AR of the assessee. However, upon verification of the balance sheet, the assessee is claiming differed tax liability of Rs. 9,96,257 and also agricultural expenses of Rs. 47,385 was debited to P & L account " 26. The fact (1) that a questionnaire was issued during the initial assessment proceedings; (2) that a reply was submitted on 9.11.2010; (3) that the reply contained details about the sale of the land; (4) that the reply to the questionnaire was accompanied by the relevant sale deeds; (5) that there was a positive claim in the reply that the lands sold were agricultural lands; and (6) that the said claim was actually examined by the Assessing Officer before passing the original order of assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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