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TMI Blog2017 (11) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... to make a full and true disclosure of all material facts necessary for assessment, notice under s. 148 issued beyond four years from the end of relevant assessment year was barred by limitation under proviso to s. 147 hence without jurisdiction. If either of these conditions is not fulfilled the notice is without jurisdiction. If the notice issued u/s 148 fails to satisfy either of the conditions, it deserves to be quashed. However, the officers have many time issued notices for reopening the assessments even beyond four years from the end of the assessment year without fulfillment of any of the legal conditions as stipulated in the first proviso to this section. Appeal of assessee is allowed. - ITA No.1940/Mum/2017 - - - Dated:- 5-7-2017 - SRI MAHAVIR SINGH, JM For The Assessee : Shri Dr. P Daniel, AR For The Revenue : Shri TA Khan, DR ORDER PER MAHAVIR SINGH, JM: This appeal by the assessee is arising out of the order of CIT(A)-45, Mumbai, in appeal No. CIT(A)-45/ACIT-33(2)/ITA-110/2015-16 dated 02-02-2017. The Assessment was framed by ACIT Circle-33(2), Mumbai for the A.Y. 2007-08 vide order dated 31-03-2015 under section 143(3) of the Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The last date for issue of notice u/s. 148 is 31.03.2014. 4. At the outset, the learned Counsel for the assessee after going through the reasons recorded by the AO for reopening of assessment, argued that the on the very basis of reopening of assessment i.e. the addition made in AY 2011-12, the CIT(A) has already deleted the addition vide order in appeal No CIT(A)-35/JCIT.25(3)/ITA.377/13-14 for the AY 2011-12 dated 14-07-2014 which reads as under: - 5. I have gone through the findings of the AC and the submissions of the appellant as given above. It is a fact that APEDA, a Government Organization has stated that the concentrated packets of red and green chili are grown in Maharashtra. in Nashik and Pune and in Nashik District in Niphad Taluka, Also there is evidence available of the AICRP that in Sangli 57 tons of chilli per hectare have been produced. With respect to the findings of the AO regarding record/register maintained by M/s. Bhanusali Transport services it is a fact that bills in the name of Jabs International were available and these are evidenced by the payment that has been received by Bhanusali. The appellant also flied confirmation from Jabs Internat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment. I have gone through the facts and circumstances of the case, we find that there is no whisper in the reasons recorded that that there is failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the relevant assessment year. The AO just want to verify the agricultural income and for this he has reopened the assessment. 7. I find that this issue is squarely covered in favor of the assessee and against Revenue by the decision of Hon ble Supreme Court in the case CIT vs. Foramer France (2003) 264 ITR 566 (SC) has taken the view that the first proviso to section 147 of the Act lays down an exception whereby the AO is not permitted to exercise his jurisdiction in reopening the assessment beyond a period of four years from the end of the relevant assessment year. Once the exception carved out by proviso to s. 147 of the Act comes into play, the case would fall outside the ambit of s. 147 of the Act. As per proviso to s. 147 of the Act, no action under this section can be taken after expiry of four years from the end of the relevant assessment year, unless inter alia, income chargeable to tax had escaped assessment by rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year. This new section has made a radical departure from the original section 147 inasmuch as clauses (a) and (b) of the original section 147 have been deleted and a new proviso added to section 147. 10. In Rakesh Aggarwal v. Asstt. CIT[1997] 225 ITR 4961, the Delhi High Court held that in view of the proviso to section 147 notice for reassessment under section 147/148 should only be issued in accordance with the new section 147, and where the original assessment had been made under section 143(3), then in view of the proviso to section 147 the notice under section 148 would be illegal if issued more than four years after the end of the relevant assessment year. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereas corporate income was to be decided on the basis of either article III or article XVI of the treaty or section 44BB. Hence, the observation of the Tribunal in Boudier Christian's case was not a direction necessary for the disposal of the appeal relating to the petitioner. The eligibility of income of the petitioner from manning and management contracts was never an issue directly or indirectly involved in the case of Boudier Christian. Moreover, the Tribunal in the appeal relating to the assessment of the petitioner's own case, vide Dy. CIT v. O.N.G.C. As agent of Foramer France[1999] 70 ITD 468 (Delhi), has considered the decision of the Tribunal in Boudier Christian's case. It is settled law that an appeal is a continuation of the original proceedings and, hence, when the Tribunal in the appeal relating to the petitioner has considered the decision of the Tribunal in Boudier Christian's case, the impugned notice under section 147/148 would obviously be on the basis of a mere change of opinion by the income-tax authorities, which would not be valid as held by the Supreme Court in Indian Eastern Newspaper Society v. CIT[1979] 119 ITR 996 1 ;Gemini Leath ..... X X X X Extracts X X X X X X X X Extracts X X X X
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