9911796707
TMI Blog2018 (2) TMI 1835X X X X Extracts X X X X X X X X Extracts X X X X ..... e of original assessment proceedings, assessee has furnished details. The reasons recorded are totally silent in respect of the failure on the part of the assessee to disclose fully and truly material facts. If we peruse the reasons recorded by the Assessing Officer, it reveals that at the time of recording of these reasons, Assessing Officer had examined original assessment records and no fresh material was found by him. Therefore, it can be said that the concerned Assessing Officer has recorded the reasons on the basis of the same fact of materials and records which were available at the time of framing of original assessment. - Decided in favour of assessee - SPECIAL CIVIL APPLICATION NO. 21403 of 2017 - - - Dated:- 21-2-2018 - HONOUR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was reopened under Section 147 of the Act, following a survey out in the case of the petitioner under Section 133A of the Act on 27.12.2012. In the said reassessment proceedings, the case of the petitioner was scrutinized and assessment was made under Section 143(3) read with Section 147 of the Act vide order dated 31.01.2014. Thereafter, the impugned notice under Section 148 of the Act dated 30.03.2017 was issued by the Assessing Officer. The petitioner-Company requested the respondent to furnish the copy of the reasons recorded while initiating the reassessment proceedings, which were duly supplied to the petitioner by the respondent. In the reasons supplied to the petitioner by the respondent, it was stated as under: 2. From the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appearing for the petitioner and Mrs. Mauna M Bhatt, learned counsel appearing for the respondent. 5. It was submitted by the learned counsel appearing for the petitioner by drawing our attention to the documents on record and contending that the sole issue pressed into service by the Assessing Officer is that the petitioner has paid marketing expense of ₹ 2,23,65,861/foreign currency in financial year 200910 was fully disclosed by the petitioner in Schedule P, together with the return filed by the petitioner. It was further submitted that the objections which has been raised by the department to point out the reasons recorded by the Assessing Officer were identically worded to submit that the Assessing Officer has not recorded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt sales. That the petitioner had not done any business in foreign currency during the relevant period as earning in foreign currency was shown as NIL, it has debited huge marketing expenses in foreign currency. That no opinion had been formed in the impugned issue in the original assessment order or in the reassessment order. There is no case of change in view of the impugned issue. That there is no prohibition under the provisions of the Act for issuing notice under Section 148 for the second time, as long as reasons for reopening exists and such reopening is in compliance to the provisions of reopening. That there is clear escapement of income on the account of failure on the part of the petitioner to disclose fully and truly all materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c sales of ₹ 95,54,93,707/and not made any export sales. Moreover earning in foreign currency was also shown as NIL. As per the averments made in the notice, assessee has not done any business in foreign currency and therefore, the expenditure claimed was not allowed as business expenditure. It appears from the record that the assessment of the petitioner was again revised. The said fact was already considered during the course of assessment proceedings. To reopen assessment beyond four years, there must be a failure on the part of assessee in disclosing fully and truly all material facts necessary for his assessment. 9. It transpires from the provisions under Section 147 that when the assessment is already completed under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove judicial pronouncements, the following principles can be culled out: (i) To confer jurisdiction to the Assessing Officer to reopen the assessment under section 147 of the Income-tax Act beyond four years from the end of the assessment year, the following two conditions must be satisfied (a) that the Assessing Officer must have reason to believe that the income chargeable to tax has escaped assessment; and (b) that the same was occasioned, on account of either failure on the part of the assessee to make a return of his income for that assessment year, or to disclose fully and truly all material facts necessary for assessment of that year; (ii) both the above conditions are conditions precedent and must be satisfied simultane ..... X X X X Extracts X X X X X X X X Extracts X X X X
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