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TMI Blog2016 (11) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... not satisfy the requirement of the Assessing Officer having reason to believe that income chargeable to tax has escaped assessment on account of the assessee not having fully and truly disclosed all material facts necessary for assessment. The minimum the reasons should have indicated was which material fact / information the Petitioner had failed to disclose. Further how this material fact has come to his knowledge subsequent to the finalising of assessment which led to the Assessing Officer to have reason to believe that the income chargeable to tax escaped assessment. No material in support of the above is indicated in the reasons in support of the impugned notice. This clearly makes the impugned notice without jurisdiction. X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/1994 declaring total loss of ₹ 33,07,06,363/. Assessment was completed u/s.143(3) of I.T. Act on 24/02/1997 at income of ₹ 71,11,040/. 2. In the assessment completed it was noticed that on following issues income has escaped assessment : ( i) Export credit interest amounting to ₹ 1,12,49,121/remained to be taxed. (ii) Unrealised gain from investment of ₹ 1,49,89,619/being accrued income but remained to be taxed. (iii) DRDA subsidy recoverable at ₹ 54,11,984/remained to be taxed. Apart from the above, provision for contingency frauds ₹ 8,16,43,000/were allowed without obtaining the details relating to loss on account of fraud and legal action taken against the concerned employees. 3. Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year. Assessee has not disclosed the correct income taxable under I.T. Act. In view of the above discussion, the statutory requirements for reopening of assessment have been fully met and the reopening for assessment is essential and legally permissible. 4. Considering the above, the assessment in the aforesaid assessee's case for A.Y. 1994-95 need to be reopened since substantial income (more than ₹ 11.33 Crores) have escaped assessment." 5. Consequent to the above, the Petitioner amended its petition and inter alia challenged the impugned notice being without jurisdiction. This essentially on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter passing an order thereon. This more particularly in view of the fact the impugned notice is ex facie without jurisdiction as is evident from the reasons recorded in support thereof. It was submitted by her that an identical submission was a subject of consideration by this court in Ajanta Pharma Ltd. vs. Assistant Commissioner of Income Tax (2007) 295 ITR 218 and the same was rejected. Therefore, this Court need not relegate the Petitioner to the Assessing Officer in this case as the impugned notice being beyond a period of four years from the end of the relevant assessment year and is on demurrer without jurisdiction. 9. A writ court has plenary jurisdiction to issue prerogative writs to do justice between parties. The courts, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer in relation to the absence of jurisdiction. It is another case that when certain facts are to be ascertained or various other materials are to be gone through to arrive at a finding about the absence of jurisdiction, in which case, certainly, the assessee will have to approach the Assessing Officer. It is so because, the jurisdiction under article 226 of the Constitution of India being an extraordinary jurisdiction cannot be allowed to be availed of as a matter of course. In order to decide an issue of jurisdiction, findings of the authority on the factual aspect may be necessary. In that case, certainly primarily the assessee will have to approach the Assessing Officer. That does not mean that the assessee is invariably bound to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons, as reproduced hereinabove, indicate that the basis for issuing a notice was not any material outside the record but proceedings available with the Assessing Officer on the basis of which the assessment under Section 143(3) of the Act was completed. No doubt, the reasons recorded in support do use the words 'that income has escaped assessment on account of nonsubmission of any information / nondisclosure of material facts'. However, merely using the above phrase as a 'mantra' would not satisfy the requirement of the Assessing Officer having reason to believe that income chargeable to tax has escaped assessment on account of the assessee not having fully and truly disclosed all material facts necessary for assessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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