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TMI Blog2016 (12) TMI 1555X X X X Extracts X X X X X X X X Extracts X X X X ..... re, it is not a case that there was any failure on the part of the assessee in not disclosing true and correct facts. As observed herein above, even there are no allegation in the notice as well as the reasons recorded that there was any failure on the part of the assessee in not disclosing true and correct facts necessary for assessment. In that view of the matter the condition precedent to assume jurisdiction under Section 147 of the Act to reopen the assessment beyond the period of four years, more particularly, contained in proviso to Section 147 of the Act are not satisfied. - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 19708 of 2016 - - - Dated:- 13-12-2016 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE PET ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer passed an order under Section 143(3) of the Act dated 13.09.2011. 3.2. That thereafter beyond the period of four years, the Assessing Officer has issued the impugned notice under Section 148 of the Act, by which, the Assessing Officer has sought to reopen the assessment for AY 200910. At the request of assessee, the Assessing Officer supplied the reasons recorded to reopen the assessment which reads as under: In this case, the assessee has filed its return of income on 21.09.2009 showing total income of ₹ 1,05,28,860/and thereafter filed revised return of income on 06.10.2009 declaring income at ₹ 95,17,730/and assessment u/s 143(3) was completed on 13.09.2011 making disallowance of ₹ 50,000/u/ s 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee. Hence, the assessee has preferred present Special Civil Application under Article 226 of the Constitution of India. 4.0. Shri J.P. Shah, learned counsel appearing on behalf of the assessee has vehemently submitted that the impugned Notice under Section 148 of the Act is bad in law and beyond the scope and ambit of Section 147 of the I.T Act. 4.1. It is vehemently submitted by Shri Shah, learned counsel appearing on behalf of the petitioner that as such, in the reasons recorded, there is no allegation that there was any failure on the part of the assessee in not disclosing true and correct facts. It is submitted that therefore, the assumption of jurisdiction by the Assessing Officer to invoke Section 147 of the I.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer that the assessee made provisions of ₹ 1,87,98,000/for Government Securities Premium Ret. of amortization and provisions of ₹ 1,17,91,812/for Government Securities Premium Amortization and Simultaneously claimed Investment Depreciation of ₹ 29,02,076/on same securities and therefore, when the premium paid was being written off, again the same security could not have been revalued again on the same date to claim loss on revaluation and therefore, when it has been noticed that both the benefits cannot be claimed simultaneously i.e. writing of premium and claiming notional loss also on revaluation on year end and it has been found that income chargeable to tax more than ₹ 1 lakhs as escaped assessment for the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary for assessment. From the reasons recorded, it appears that according to the AO though the assessee was not entitled to both the benefits simultaneously i.e. writing of premium and claiming notional loss also on revaluation of year end and still such benefit have been granted by the AO. Therefore, it is not a case that there was any failure on the part of the assessee in not disclosing true and correct facts. As observed herein above, even there are no allegation in the notice as well as the reasons recorded that there was any failure on the part of the assessee in not disclosing true and correct facts necessary for assessment. In that view of the matter the condition precedent to assume jurisdiction under Section 147 of the Act to reope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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