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TMI Blog2018 (3) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... non-furnishing of the Form at the time of the original assessment, the assessment can be reopened, neither any such decision is brought to our notice. Thus Petitioner had placed on record the necessary information for the purpose of assessing income as regard the transfer of shares. What is sought to be done by the Assessing Officer now is a reopening of assessment after four years, on a mere change of opinion. The non-furnishing of the Form is only an excuse given by the Assessing Officer to attempt to exercise an nonexistent power. - Decided in favour of assessee - Writ Petition No.1060 Of 2017 - - - Dated:- 6-3-2018 - N.M. Jamdar Prithviraj K. Chavan, JJ. Mr. Mihir Naniwadekar with Ms. Vinita V. Palyekar, Advocates for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 29 March 2017, notice was issued to the Petitioner under Section 148 of the Act. The Petitioner sought reasons for reopening of the assessment by letter dated 4 April 2017. Respondent no.1 furnished reasons by letter dated 5 October 2017. In the letter, it was stated that the Petitioner did not produce requisite Form under Rule 29B and the profit from sale of shares of Goa Carbon Limited to Esmeralda Investments Private Limited was not brought to tax. The Petitioner gave his reply to the objections on 13 October 2017, which were rejected by the impugned order dated 9 November 2017. The Petitioner has thereafter filed this present writ petition challenging the reassessment proceedings. Reply-affidavit has been filed by the Respondents. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer to add to the reasons and the reasons given must speak for themselves. By merely stating that `there is failure on the part of assessee to disclose fully and truly all material facts' in the order does not satisfy the requirement of this Section, as it would amount to merely reproducing the language of the section. 7. Mr. Naniwadekar submitted that not only the reasons supplied to the Petitioner do not elaborate and disclose in what manner the Petitioner has not furnished the relevant material facts so that the power of reassessment can be exercised, there has been no withholding of the relevant material and the Petitioner has produced all the necessary information when the case was taken for scrutiny. Ms. Linha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with special provision for payment of tax by certain Companies. Sub-section (4) of Section 115JB reads thus: (4) Every company to which this section applies, shall furnish a report in the prescribed form from an accountant as defined in the Explanation below sub-section (2) of section 288, certifying that the book profit has been computed in accordance with the provisions of this section along with the return of income filed under sub-section (1) of section 139 or along with the return of income furnished in response to a notice under clause (i) of sub-section (1) of section 142 . As rightly contended by Mr.Naniwadekar, the Section refers to production of the Form from an accountant along with the original assessment. This requireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else, far less the assessee, to tell the assessing authority what inferences, whether of facts or law, should be drawn. The Apex Court has thus concluded that the Income Tax Officer in that case thus had all the material facts before him when he made the original assessment and he cannot now take recourse to Section 147(a) to remedy the error resulting from his own oversight. 11. Thus, if the primary facts are placed before the Assessing Officer, the Assessing Officer is in a position to take decision thereupon, it cannot amount to failure on the part of the assessee to withhold to furnish t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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