9911796707
TMI Blog2018 (5) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... CE B.N. KARIA) This petition under Article 226 of the Constitution of India is directed against the notice dated 26th March 2017 issued by the respondent-Assistant Commissioner of Income Tax under Section 148 of the Income-tax Act, 1961 [ the Act for short] seeking to reopen the assessment of the petitioner for the assessment year 2010-2011. The facts stated briefly are that the respondent herein assumes jurisdiction under Section 147 of the Act seeking to reopen the assessment of the petitioner for AY 2010-2011 and accordingly issued notice dated 26th March 2017 under section 148 of the Act. In response to the said notice issued under Section 148 of the Act, the petitioner-assessee filed his return of income on 24th April 2017 showing income at Rs. Nil, after claiming deduction under Chapter VIIA of the Act amounting ₹ 3,54,29,124/=. The assessee was given copy of the reasons recorded for reopening of the proceedings on 19th September 2017 whereupon the reasons came to be furnished to the petitioner. The reasons recorded by the respondent for reopening the assessment read as under : 5. It is also noted that the assessee has claimed the deduction of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears from the end of relevant assessment year without any failure on the part of the assessee to disclose truly and fully all material facts was bad in law. That, the assessee had filed return of income under Section 139 [1] of the Act on 30th October 2010. The Assessing Officer was accordingly requested to drop the proceedings initiated under Section 147 of the Act. The Assessing Officer, however, rejected the objections filed by the petitioner, which has given rise to the present petition. Shri BS Soparkar, learned counsel for the assessee assailed the impugned notice by submitting that the assessment of the petitioner was contrary to law inasmuch as no reasons were recorded to indicate that there was any failure on the part of the petitioner to disclose fully and truly all material facts, while original assessment was made. Counsel further submitted that mere belief that income chargeable to tax as escaped assessment was not sufficient to reopen the assessment beyond the period of four years. That, as per the provision of Section 147 of the Act, even for reopening of assessment during the period of four years, it is mandatory for the Assessing Officer to record failure of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd learned counsel for the respective sides and having perused the material available on the record, it appears that the return of income for AY 2010-2011 was filed by the petitioner on 7th October 2010 showing his income at Rs. nil. Thereafter, scrutiny of the return of income was undertaken and certain questions were raised by the Assessing Officer; including the business of the petitioner and claim of deduction made under Section 80IB. It also appears that other questions were also raised by the Assessing Officer in respect of additions made to the fixed assets. The petitioner replied the queries raised by the respondent and thereafter, the assessment was framed under Section 143 [3] of the Act by an order dated 28th March 2013 calculating the income of the petitioner at ₹ 98,40,140/=. It appears that thereafter, the impugned notice was issued by the Assessing Officer under Section 148 of the Act intending to reopen the assessment for AY 2010- 2011. In compliance of the notice issued by the Assessing Officer, the petitioner had filed reply on 21st March 2017 showing details of return of income and requested to provide reasons recorded for initiating re-assessment proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts necessary for assessment, as the assessee had already tabulated necessary details/particulars as were required by the Assessing Officer at the time of original assessment, and therefore, there was no failure on the part of the assessee to disclose fully and truly any material facts which were necessary for assessment. A brief discussion of the precedents in law on this issue would be relevant at this stage. In the case of Corporation Bank Limited, reported in [2002] 254 ITR 791, in a case wherein the balance sheet filed along with the income-tax return, the assessee furnished particulars of interest suspense account showing a sum which was not recoverable for the relevant account year, it was held that the proceedings under Section 147 of the Act was not justified since there was no failure on the part of the assessee to disclose fully and truly the material facts necessary for the assessment. In the case of ACIT v. ICIC Securities Primary Dealership Limited, reported in 348 ITR 299, the Apex Court while dismissing the Appeal filed by the Department held that, For A.Y 1999-2000, the assessee claimed a deduction for ₹ 19.86 Crores which was allowed by the A.O in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It can be clearly noted from the reasons recored that there is no mention at all of the assessee having not disclosed fully or truly material facts which were necessary for the purpose of computing the income of the assessee. Assuming that in the notice for reopening, such wordings are not specifically mentioned and they can be supplemented either while rejecting th objections or by way of affidavit of the Assessing Officer, then also, the revenue has failed to point out as to in what manner these has been non disclosure on the part of the assessee . 27. From the ratio that can be culled out from all these decisions, it is amply clear that the Assessing Officer, who is authorized to issue notice under section 148 of the Act for reassessment, on his having a reason to believe that income chargeable to tax had escaped assessment for any assessment year, can assess or reassess such income and also any such other income chargeable to tax, which has escaped the assessment. However, no such action is permissible after lapse of 4 years from the end of the relevant assessment year unless income chargeable to tax has escaped assessment on account of failure on the part of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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