9911796707
TMI Blog2014 (4) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... change difference have been noted, leading to form a belief of escapement of income. From the very material available and in wake of this discussion, we hold that the belief formed by the Assessing Officer is from the very record of the case, and therefore, the very assumption of the jurisdiction on the part of the AO in this case, where the notice had been issued on expiry of four years period is not sustainable, and therefore, despite the contention on the part of the Revenue of availability of alternate remedy, the interference at this stage is necessary. Notice of reopening deserves to be quashed and is hereby quashed therefor. We have recorded the objections raised by the petitioner for absence of deemed approval in accordance with law and though the same has been strongly resisted by the Revenue, if chosen not to opine of this aspect, as on the very first and vital ground, we have quashed the notice for reopening. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... he profit and gains of the business. The said expenses required to be disallowed and added to income for the purpose of income tax which was not done. This resulted in under-assessment of income of ₹ 7,51,344/= and total short levy of income tax of ₹ 3,36,358/= [I.T 2,52,901 + Interest u/s. 234B of ₹ 83,457/=]. Therefore, I have reason to believe that there is escapement of income on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year. Hence, case of the assessee for A.Y 2006-07 requires to be re-opened. Issue notice u/s. 148 of the I.T Act. This notice is being issued after obtaining the approval of the CIT-III, Surat vide his letter No. SRT/CIT-III/ITO (Tech)/147/PG/12-13 dated 15.03.2013." 4. The objections against reopening of the assessment had been furnished on 1st January 2014 by the petitioner mainly on the ground that such reopening was beyond the period of four years from the end of the relevant assessment year; the issue was already examined during the scrutiny assessment; nothing comes out either from the reasons recorded or otherwise that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be applicable in the present case. In absence of any specific details furnished by the assessee, stand is taken by the Revenue that proceedings of reopening was not solely on the ground of the audit party objection but Assessing Officer had applied his mind and thereafter such notice has been issued. 7. We have heard learned counsel Shri Tej Shah for the petitioner. It was fervently submitted before us by him that the re-assessment proceedings initiated by the Assessing Officer is in the previously completed assessment, after scrutiny. Issuance of notice on completion of four years from the end of relevant assessment year would require that there has to be failure on the part of the assessee to disclose truly and fully all material facts necessary for the assessment. Reasons recorded also must reflect that the Assessing Officer has formed a reasonable belief from new material that the income chargeable to tax has escaped the assessment. He also has submitted that the approval ought to have come from the Joint Commissioner as the Assessing Officer, who has issued the notice is in the rank of Assistant Commissioner. Further submission made by the learned counsel is with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it comes to his notice from any new tangible material. No action although can be taken on expiry of four years period unless the income has escaped assessment on account of assessee's failure to disclose fully and truly all material facts. 11. Such being the requirement, the reasons recorded by the Assessing Officer for issuance of such notice shall need to be regarded at this stage. Reasons supplied to the petitioner clearly mentions that on verification of case record, it is found that the assessee had availed foreign currency loan from the certain banks under Post Shipment Credit/Packing Credit. Without further delving on the merits of this aspect, it could be thus seen that the Assessing Officer, while forming a belief that there was an escapement of income on account of failure on the part of the assessee to disclose truly and fully all material facts, has gathered the information from the record of the case. Thus, the material which has led him to form such a belief has come from the record itself, and therefore, the need would be to examine from the details furnished at the time of original assessment proceedings as to whether in fact there has been any failure on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer to change his opinion by issuing the notice of re-assessment for the same being impermissible under the law. 16. The respondent-Revenue could not point out as to in what manner, there has been a failure on the part of the assessee to disclose such material facts noted hereinabove. The reasons recorded itself also clearly indicates that from the verification of the record and on perusal of balance-sheet, details of exchange difference have been noted, leading to form a belief of escapement of income. 17. From the very material available and in wake of this discussion, we hold that the belief formed by the Assessing Officer is from the very record of the case, and therefore, the very assumption of the jurisdiction on the part of the Assessing Officer in this case, where the notice had been issued on expiry of four years' period is not sustainable, and therefore, despite the contention on the part of the Revenue of availability of alternate remedy, the interference at this stage is necessary. 18. In light of the above findings, the notice of reopening deserves to be quashed and is hereby quashed therefor. We have recorded the objections raised by the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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