9911796707
TMI Blog2005 (8) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... course of the assessment proceedings, respondent No. 1 was noticed by the Income-tax Officer and after full satisfaction with the explanation furnished by the petitioner, the order of assessment came to be passed on January 28, 1988. The assessment was thus completed by respondent No. 1 under section 143(3) of the Act. The petitioner's negative income for the assessment year 1985-86 was assessed at Rs. 91,157. In order to reopen the aforesaid assessment, the impugned notice dated November 4, 1991 under section 148 of the Act came to be issued. Respondent No. 1 in the impugned notice has stated that she had reason to believe that the income of the petitioner chargeable to tax for the assessment year 1985-86 has escaped assessment within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgeable to tax. He further submits that no reopening is permissible on the basis of a change of opinion. Mr. Pardiwalla, in support of his submission, placed reliance on a number of judgments of this court, one of such delivered in the case of Hindustan Lever Ltd. v. R.B. Wadkar, Asst. CIT (No. 1) [2004] 268 ITR 332. He pressed into service the observations of this court quoted herein below: "The reasons recorded by the Assessing Officer nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year. It is needless to mention that the reasons are required to be read as they were recorded by the Assessing Officer. No substitution or deleti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons recorded by the Assessing Officer cannot be supplemented by filing an affidavit or making an oral submission, otherwise, the reasons which were lacking in material particulars would get supplemented, by the time the matter reaches to the court, on the strength of affidavit or oral submissions advanced." Mr. Pardiwalla also relied upon another judgment of this court in the case of Caprihans India Ltd. v. Tarun Seem, Deputy CIT [2004] 266 ITR 566. He also relied upon another judgment of this court in the case of ICICI Bank Ltd. v. K.J. Rao [2004] 268 ITR 203 and placed reliance particularly on para. 12 of the said judgment which reads as under: "Under section 147 of the Income-tax Act, concluded assessments can be reopened beyond a peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the escapement of income is on account of failure on the part of the assessee to disclose fully and truly all material facts. It has been further held that the Explanation to section 147 of the Income-tax Act has to be read with section 148 of the Income-tax Act in its entirety. In the light of the aforesaid decisions, in the present case, there being no failure on the part of the assessee to disclose fully and truly all material facts, the impugned notices issued beyond the period of four years from the end of the relevant assessment years, are liable to be held to have been issued in contravention of the provisions of the Income-tax Act." Mr. Pardiwalla, thus, contends that the impugned notice is liable to be set aside and the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s beyond the period of four years, in the absence of any material to show that there is failure on the part of the assessee to disclose fully and truly all material facts, the reopening of the assessment cannot be sustained. The reasons recorded for reopening the assessment do not state that there is any failure on the part of the assessee to disclose fully and truly any material facts. The mere fact that a protective assessment has been made in the case of some other assessee on the ground that the income of that assessee is assessable in the hands of the assessee herein cannot be a ground to reopen the concluded assessment of the assessee. Since the conditions required for reopening the assessment beyond the period of four years are not s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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