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TMI Blog2018 (3) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... settled that even if such a statement is made, it is only a reproduction of the section and does not necessarily show the existence of this fact. But in the present case, even that statement is missing. Therefore, the Petitioner was not put to notice as to which information the Petitioner had failed to disclose which led to invocation of Sections 147, 148 of the Act. Thereafter, when the order was passed on 3 October 2017, it only refers to the decision which treated the mushroom farming as not an agricultural income. That, however, is on the merits of the reassessment proceedings. The Respondents will have to first show whether the Respondent is entitled to invoke jurisdiction under Sections 147, 148 of the Act. It is case of mere change of opinion - Assessment u/s 147 is not valid - Decided in favor of assessee. - Writ Petition No.1000 of 2017 - - - Dated:- 13-3-2018 - N.M. Jamdar Prithviraj K. Chavan, JJ. Mr. K. Gopal with Mr. Shivan Desai, Advocates for the Petitioner. Ms. Susan Linhares, Junior Central Govt. Standing Counsel for the Respondents. ORAL JUDGMENT : (Per N.M. Jamdar, J.) Rule. Rule made returnable forthwith. The respondents waive serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on the jurisdictional requirement for reopening of an assessment being strictly satisfied. This is for the reason that a reopening of an assessment would disturb an settled position by reopening a completed proceeding. Normally, the jurisdictional requirements to be satisfied for issuing of an reopening notice are as under: (a) the Assessing Officer must record his reasons/grounds for issuing a reopening notice before issuing the same; (b) the Assessing Officer should have reason to believe that income chargeable to tax has escaped assessment and the same must be recorded/revealed in his reasons/grounds; (c) the Assessing Officer should not have considered the issue on which the reopening is sought during the regular assessment proceedings. In case the issue has been considered even if evidenced by asking questions then such an attempt to reconsider would not be permitted on ground of being a mere change of opinion; (d) the reopening of an assessment must be on tangible material and the grounds/reasons for reopening must be recorded before the issuing of notice for reopening of an assessment; (e) these grounds/reasons recorded for reopening of an asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and the reasons cannot be improved upon, substituted or supplemented. This view has been followed by this court in several other cases. 10. As stated above, the reasons supplied to the petitioner do not disclose that there was any failure on the part of the petitioner to provide all the material facts. That being the position, this ground could not have been taken up against the petitioner at the time of disposing of the objections. Once this was not the basis for issuance of notice for reassessment, it cannot be held against the petitioner that the petitioner had failed to make a true and full disclosure. It will have to be held that the petitioner did not fail to make full and true disclosure of all material facts. The jurisdictional requirement for carrying out the reassessment, after the expiry of the period of four years, is not fulfilled in the present case. 8. Thus Section 147 of the Act empowers the Assessing Officer, if he has a reason to believe that any income chargeable to tax has escaped assessment, to reassess the income. Section 147, however, contains a proviso that no action under section 147 will be taken after a period of expiry of four years of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) VAT assessment order confirming that the assessee is dealing in mushroom and that gross turnover is exempt from tax as per entry no.23 (fresh vegetables and fruits) of Schedule D of VAT Act, 2005 being Agricultural Sale/Income. d) Letter from Goa State Pollution Control Board stating that since growing and processing of tropical mushrooms is an agricultural activity, clearance from Board is not required. 4. Hence from a perusal of details filed by the assessee in the course of hearing as well as facts of the case, it is inferred that the assessee is deriving Agricultural Income. Hence the total income assessed for income tax purpose is assessed at NIL. 10. Thereafter, the reassessment proceedings have been initiated after a period of four years. The first requirement is that there must be failure on the part of the assessee to disclose fully and truly, all material facts. The reasons supplied to the Petitioner do not contain even the usual formal statement that there has been failure to disclose material information by the Petitioner. The legal position is settled that even if such a statement is made, it is only a reproduction of the section and does not necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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