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TMI Blog2016 (9) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. For the assessment year 2008-09, the petitioner had filed a return of income on 29.09.2008, declaring total income of Rs. 15,94,430/- . Such return was accepted under section 143(1) of the Income Tax Act, 1961 ('the Act' for short) without scrutiny. To reopen such assessment, the Assessing Officer issued impugned notice. In order to do so, he has recorded following reasons: " The assessee company had filed its return of income u/s. 139(1) of the Act on 29/09/2008 declaring total income of Rs. 49,43,530/- . The return was processed u/s 143(1) on 16/02/2010. The case was not selected for scrutiny. As per information of this office the assessee company has received share capital and share premium of Rs. 20,00,000/- from the Entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to kindly drop the proceedings as the reasons recorded are incorrect." Alongwith such letter, the petitioner had also supplied a copy of its share capital account to demonstrate that the company had not received the amount of Rs. 20 lakhs by way of share capital from any of the entities managed by Shri Pratik R. Shah as was referred to in the reasons recorded by the Assessing Officer. 4. Such objection however met with a reply from the Assessing Officer under letter dated 22.03.2016 conveying following. "In response to your submission, it is to state that vide your above referred submission, you have submitted only Share Capital A/c and bank statement without any supportings. In absence of the supporting evidences, the legitimacy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able belief that income chargeable to tax has escaped assessment, which can be formed on the basis of some tangible material having a live link with the formation of belief. Counsel lastly contended that merely because the assessment has already been framed, would not prevent this Court from striking down the very notice, since the Assessing Officer has no jurisdiction to frame the assessment, unless the reopening was validly done. 7. On the other hand, learned counsel Shri Mehta for the department submitted that the Assessing Officer had recorded reasons to reopen an assessment which was previously framed without scrutiny. To the question of the company having received share capital money of Rs. 20 lakhs from Shri Pratik R. Shah managed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer has reason to believe that income chargeable to tax has escaped assessment is not done away with. Section 147 of the Act permits the Assessing Officer to assess, reassess the income or recompute the loss or depreciation if he has reason to believe that any income chargeable to tax has escaped assessment for any assessment year. This power to reopen assessment is available in either case, namely, while a return has been either accepted under section 143(1) of the Act or a scrutiny assessment has been framed under section 143(3) of the Act. A common requirement in both of cases is that the Assessing Officer should have reason to believe that any income chargeable to tax has escaped assessment." 10. With this background, we ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that in absence of full evidences, it is not possible to accept such a contention at this stage. Had the Assessing Officer been more proactive, he would have realized that issuing notice for the assessment year 2008-09 was a sheer mistake. The department had its command material to reopen the assessment of the petitioner pertaining to the financial year 2008-09 and that therefore, notice for reopening should have been issued for the assessment year 2009-10. Instead, he adopted a rather rigid stand of not recalling a notice which was already issued, though, for the wrong year. Be that as it may, these aspects become further clear when we peruse the order of assessment, in which, after referring to the background of the case, and the reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the financial year 2008-09 by error notice came to be issued for the assessment year 2008-09 instead of assessment year 2009-10. Had this been a mere typographical error so treated by the Assessing Officer, we would have considered the question whether a mere typographical error could invalidate otherwise valid proceedings. However, even the Assessing Officer has not treated the impugned notice as to referring to the assessment year 2009-10 wrongly typed as assessment year 2008-09. He has all along acted as if through the impugned notice, the assessment for the assessment year 2008-09 having been reopened. Whatever doubt one may have would disappear when one refers to multiple notices that the Assessing Officer issued to the assessee for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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