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TMI Blog2017 (7) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... gs this issue was not raised. In view of the fact, that there was a full disclosure by the Assessee of all the material facts relating to the exempt income it cannot be said that the condition for reopening of the assessment is satisfied on this count. Even the second reason is a mere reproduction of the earlier notice dated 28th March, 2013. The nature of business of the Petitioner has always been known to the Revenue year after year. Even in this reason there is not even a whisper of the failure by the Petitioner to make a full and true disclosure of all the material facts necessary for the assessment. Thus, the impugned notice does not satisfy the rigors of Sections 147/148 of the Act as there has been no non-disclosure of the material facts by the Petitioner. In fact, even the reasons accompanying the impugned notice do not even say that there is any failure by the Petitioner to disclose fully and truly all the material facts. - Decided in favour of assessee. - W. P. (C) 12324/2015 - - - Dated:- 24-7-2017 - S. Muralidhar And Prathiba M. Singh, JJ. For the Petitioner : Mr. Salil Aggarwal and Mr. Madhur Aggarwal, Advocates For the Respondent : Mr. Zoheb Hos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er there was mere change of opinion and/or no fresh material has surfaced after the completion of the assessment under Section 143(3). The writ petitions are allowed to the aforesaid extent. There shall be no order as to costs. 4. Pursuant to the said order, a fresh notice was issued to the Petitioner on 16th July, 2015 under Sections 147/148 of the Act for the same AY viz., 2008-09. The two reasons for reopening the assessment read as under: 2.1 Disallowance u/s 14-A r.w. Rule 8-D of the IT Act, 1961; ...... 2.2 Complex web of subsidiaries colourable device of transferring shares instead of substantial transfer of landed properties. ........ 5. The Petitioner filed its objections to the reopening of the assessment on 28th July, 2015. The said objections were rejected on 9th November, 2015. The Petitioner thereafter filed the present writ petition seeking the quashing of the notice under Section 148 of the Act dated 4th March, 2015 and order dated 9th November, 2015 rejecting the Petitioner s objections thereto. Petitioner s Submissions 6. Mr. Salil Aggarwal, learned counsel for the Petitioner, submitted that the reasons recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order merely required the AO to issue a fresh notice if any income had escaped assessment. There is no need to satisfy the conditions for reopening an assessment beyond the four-year period. It is Mr. Hossain s submission that the impugned order has to be treated as a notice issued within the four year period. The mentioning of the first proviso to Section 147 in the order dated 3rd September, 2014 of this Court was, according to Mr. Hossain, only in the context of Section 143 (3) of the Act. 10. Without prejudice to the above submissions, Mr. Hossain further submitted that the Petitioner has failed to make a full and true disclosure of all the material facts, inasmuch as, the Petitioner has deliberately shown the income under an incorrect head. It is clear from the order rejecting the objection of the Petitioner and hence this is a fit case for dismissal of the writ petition. 11. Mr. Hossain relied upon the decision in Chennai Properties and Investments Limited, Chennai v. Commissioner of Income Tax Central III, Tamil Nadu, (2015) 14 SCC 793 and urged that the AO at this stage had only to see whether there was some material to reopen the case. The sufficiency or cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therein are a verbatim reproduction of the reasons which were recorded in the notice dated 28th March, 2013 which came to be set aside by this Court on 3rd September, 2014. The re-issuance of the quashed notice in identical terms could not have been the purpose of the order dated 3rd September, 2014 passed by this Court. The said impugned notice dated 28th March, 2013 was set aside and proceedings pursuant to the said notice stood quashed. The direction to issue fresh notice keeping in mind the first proviso of Section 147 of the Act clearly meant that the Revenue had to satisfy the rigors of the said proviso. 17. Further, a perusal of the reply submitted by the Petitioner to the questionnaire, which was issued on 29th October, 2009 by the AO as part of the proceedings under Section 143 (3) of the Act, clearly reveals that the dividend income was fully disclosed in the reply dated 17th November, 2009. The questionnaire having been duly replied to and the assessment order having been passed under Section 143 (3) of the Act on 30th December 2009, it cannot be said that AO did not form an opinion on the issue. The questionnaire specifically sought details of several incomes, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. ... 23. This Court in HCL Technologies Ltd. v. Deputy Commissioner of Income Tax (W.P.(C.) 8164/2010 decided on 20/7/2017) has held as follows: 16. The AO has not made the effort of disclosing, in the reasons, what according to him constituted the failure by the Assessee to make a full and true disclosure. A mere reproduction of the language of the provision will not suffice. Also, although making such an averment either in the order rejecting the objections of the Assessee or subsequently in the counter-affidavit in the answer to a writ petition will not satisfy the requirement of the law. The reasons will have to speak for themselves. For complying with the jurisdictional requirement under the first proviso to Section 147 of the Act, the reasons would have to show in what manner the Assessee had failed to make a full and true disclosure of all the material facts necessary for the assessment. The failure to do so would not be a mere irregularity. It would render the reopening of the assessment after four years vulnerable to invalidation. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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