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TMI Blog2019 (1) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... ully and truly all material facts as contemplated under the first proviso to Section 147. These findings, being purely factual in nature, and nothing being brought to our notice that these findings are in any way perverse, we do not think that the questions of law as proposed by Mr. Suresh Kumar give rise to any substantial question of law requiring our consideration in an appeal under Section 260A. - INCOME TAX APPEAL (IT) NO. 965 OF 2016 - - - Dated:- 11-1-2019 - AKIL KURESHI B.P. COLABAWALLA, JJ. Mr. Suresh Kumar for the appellant. None for the Respondent. JUDGMENT [ PER B. P. COLABAWALLA J. ]: 1. This Income Tax Appeal filed under section 260A of the Income Tax Act, 1961 (for short the I.T. Act, 1961 ), takes exception to the order passed by the Income Tax Appellate Tribunal, Pune Bench B , Pune (for short the ITAT ) under which the appeal filed by the revenue was dismissed. The appeal filed before the ITAT was against the order passed the Commissioner of Income Tax (Appeals) [for short CIT(A) ] dated 6th December, 2012 which allowed the appeal of the assessee. The assessment year (for short A.Y. ) in question was A.Y. 2003-04. 2. Mr. Suresh Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e attached with the return of income, the assessee had declared that it has sold the land and the manner in which the sale consideration of ₹ 3034.50 Lakhs was proposed to be received and utilized. The objections of the assessee were overruled by the A.O. who thereafter proceeded to pass the reassessment order under Section 143(3) read with Section 147 of the I.T. Act, 1961 in relation to A.Y. 2003-04. 5. Being aggrieved by this re-assessment order, the assessee preferred an appeal before the CIT(A). The CIT(A), after considering the submissions of the assessee and the return of income filed by the assessee [which can be found at page 11 of the CIT(A) order] and the note explaining the background and computation of capital gains arrived at [which is reproduced on pages 10 and 13 of the CIT(A) order] gave a finding that all facts were mentioned in the note appended to the return of income for A.Y. 2003-04. The CIT(A) therefore held that the assessee had disclosed the fact of acquisition of the asset and the transfer of development rights in the note attached to the return of income and also in the audited balancesheet along with the notes of the auditor. It was, accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first proviso to Section 147 of the I.T. Act, 1961 which inter alia reads thus- Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the 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. 9. As mentioned earlier, admittedly, in the present case an assessment order has been passed under Section 143(3) of the I.T. Act, 1961 as far back as on 13th February, 2006 for the A.Y. 2003-04. It is also admitted that the re-assessment proceedings initiated for A.Y. 2003-04 was after expiry of four years from the end of the A.Y. 2003-04. In such a scenario, no action for initiation of re-assessment proceedings for the said assessment year could be initiated unless the income ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Page 16 of 43 WP1568/13 failure on the part of the assessee to make a return under section 139 or in response to a notice issued under subsection (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: 17. Admittedly, in the present case, an assessment had been made under section 143(3) for A.Y. 2005-06. It is also admitted that the reassessment proceedings initiated for A.Y. 2005-06 was after the expiry of four years from the end of the A.Y. 200506. In such a scenario, no action for initiation of reassessment proceedings for A.Y. 2005-06 could be initiated unless the income chargeable to tax had escaped assessment by a reason of failure on the part of the petitioner to disclose fully and truly all material facts. As rightly submitted by Mr Dastur, the learned Senior Counsel appearing on behalf of the Petitioner, there is not even an allegation in the said reasons that there was a failure on the part of the Petitioner to disclose any material fact, let alone the details thereof. 18. It is now well settled that the reasons which are recorded by the assessing officer for reopening an ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the affidavit or oral submissions advanced. (emphasis supplied) 19. After relying upon the judgement of Hindustan Lever (supra) another Division Bench of this Court in the case of Prashant S. Joshi v/s Income Tax officer and another, reported in (2010) 325 ITR 154 (Bom), held as follows : 9. Section 147 provides that if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may subject to the provisions of sections 148 to 163, assess or reassess such income and also any other income chargeable to tax, which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under the section. The first proviso to section 147 has no application in the facts of this case. The basic postulate which underlies section 147 is the formation of the belief by the Assessing Officer that any income chargeable to tax has escaped assessment for any assessment year. The Assessing Officer must have reason to believe that such is the case before he proceeds to issue a notice under section 147. The reasons which are recorded by the Assessing officer for reopening an ass ..... 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