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TMI Blog2017 (11) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... with law as the assessing officer had reason to believe that the income liable to tax had escaped assessment by allowing the assessee the excessive brought forward losses for the assessment year in question. Even no submission has been made by the authorised representative of the assessee with regard to other grounds that is with regard to non-issuance of notice under Section 143(2) of the Act or non-receiving of the notice by the assessee. The findings of fact therefore, recorded by the Tribunal are clearly need no interpretation by this Court. The Tribunal has dealt with the issue after due consideration of the material and record and has passed a reasoned speaking order, which needs no interference by this Court, hence the appeal filed by the appellant has no force, accordingly the same is dismissed. - Income Tax Appeal No. 407 of 2007 - - - Dated:- 23-10-2017 - Hon'ble Abhinava Upadhya And Hon'ble Ashok Kumar, JJ. For the Appellant : Vinod Kumar Rastogi For the Respondent : C.S.C., Manish Goel ORDER ( Per-Ashok Kumar, J. ) This is an Income Tax Appeal filed by the assessee, against the order dated 8.12.2006 of the Income Tax Appellate Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act (hereinafter referred to as 'Act') for the assessement year 1993-94 initiated by the assessing authority, during the pendency of the proceedings under Section 154 are illegal as such cannot be initiated against the assessee/appellant. The facts of the case are that on 31.12.1993 the assessee has filed a return showing the total loss of ₹ 2,93,485/- after deducting brought forward losses on depreciation and investment allowances. The case of the assessee was processed on returned loss however, the same has been reopened on the basis of the reasons recorded. Recourse to Section 147 was taken and a notice under Section 148 dated 30.5.2001 was issued and served by the assessing authority. During the course of the re-assessment proceedings notice under Section 142(1) was issued and thereafter another notice under Section 142(1) was issued of which the assessee has filed written submission. In the written submission, which has been submitted in the Dak, the assessee has not made any submission on merit but has only challenged the proceedings on technical grounds. The assessing authority has found that the submission of the assessee in its written submission was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment u/s. 147. For Assessment Year 1992-93, the appellant had filed an appeal. The appeal for A.Yr. 1992-93 has been decided by me vide order no. CIT(A)-II/840/ACIT-6/2003-04 dated 17.3.2005. The appeal of the appellant for A.Yr. has been dismissed. Only additional ground of appeal in this year is that the AO was not justified in issuing a notice u/s 147. This ground of appeal has already been dealt by me in the appeal for A.Yr. 1992-93. Following the appellate order for the A.Y. 1992-93, the appeal is dismissed. Aggrieved by the order of the CIT (Appeals) dated 17.3.2005 the assessee went in appeal before the ITAT. The ITAT has decided the appeals for three assessment years namely 1992-93, 1993-94 (the year under consideration in the present appeal) and assessment year 1994-95. Learned counsel for the assessee has submitted that the order of the Tribunal is incorrect so far as the same is concerned with regard to the objection of the appellant/ assessee that no proceedings can be initiated under Section 147/148 when the proceedings under Section 154/254 of the Act are pending. Learned counsel for the assessee has placed the relevant findings of the ITAT on the said issue : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the ld. Authorized representative of the assessee has not made any submission in regard to other grounds stated in the grounds of appeal i.e. in regard to non-issuance of notice u/s. 143(2) of the Act and /or non-receipt of notice by the assessee. In view of the above, we are of the considered view that the A.O. rightly initiated reassessment proceedings u/s. 148 of the Income Tax Act, 1961 and consequently order passed by the A.O. U/s. 143(3)/148 of the Act dated 27.2.2003 is valid and accordingly order of the ld. CIT (A) is confirmed by rejecting grounds of appeal taken by the assessee. 16.3. In regard to appeal for assessment year 1994-95, we do agree with the ld. Authorized representative of the assessee that reasons stated by the A.O. in notice issued u/s. 154/254 of the Act dated 21.5.2001 and subsequent notice issued u/s. 148 of the Act after recording reasons u/s. 148(2) of the Act, the copy of which is placed at page 3 of the paper book, reasons are identical. The notice issued u/s. 154/254 of the Act dated 21.5.2001 had not been withdrawn on the date when action u/s. 148 of the Act was initiated by the A.O. In view of the above facts, we are of the considered v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es or the depreciation allowance or any other allowance, as the case may be, in the assessment year concerned. Now it is to be seen as to whether or not there was a failure or omission to disclose fully and truly material facts, is essentially a question of fact. The term failure on the part of the assessee is not restricted only to the Income-tax return and the columns of the Income-tax return or the tax audit report. This is the first stage. The expression failure to fully and truly disclose material facts also relates to the stage of the assessment proceedings, the second stage. There can be omission and failure on the part of the assessee to disclose fully and truly material facts during the course of the assessment proceedings. This can happen when the assessee does not disclose or furnish to the Assessing Officer complete and correct information and details it is required and under an obligation to disclose. The burden is on the assessee to make full and true disclosure. The Explanation to section 147 stipulates that mere production of books of account or other evidence is not sufficient. Merely because material lies imbedded in material or evidence, which the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shah vs. ACIT, (2000) 245 ITR 774 and Calcutta High Court in Berger Paints India Limited vs. ACIT, (2010) 232 CTR 338 for the same reason is misconceived. The aforesaid judgments do not state that once notice under section 154 of the Act is issued, resort to section 147 is barred or prohibited under the Act. What is highlighted by the Gujarat High Court is the distinction between section 154 and 147 of the Act. It is further pointed out that if section 154 of the Act is applicable then the Assessing Officer should not arbitrarily and in a wanton manner resort to process of reopening the assessment under section 147 of the Act. This reasoning is contrary and goes against the plea and argument of the appellant as it accepts the difference in scope and ambit of the said provisions. It has been held that when mistakes are apparent, the Assessing Officer should invoke section 154 of the Act but in cases where mistakes are not apparent from the record, the Assessing Officer can reopen assessments under section 147 of the Act when the pre-conditions are satisfied. Rectification of a mistake apparent from the record cannot be equated with the power of reopening under Section 147 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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