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TMI Blog2017 (4) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 passed by Income Tax Appellate Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as 'Tribunal') in I.T.A. No. 317/LKW/2015 relating to Assessment year (hereinafter referred to as 'A.Y200506. 3. Though appellant has formulated four substantial questions of law but we find that only two following substantial questions of law need to be adjudicated in this appeal: "(i) Whether notice under Section 147 of Act, 1961 issued to the Assessee for reassessment after four years was barred by limitation? (ii) Whether the reasons given by competent authority approving reassessment is within scope of Section 147 of Act, 1961?" 4. The brief facts necessary for adjudication of above substantial questions of law are as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after getting approval from Commission of Income Tax, Lucknow. Thereafter, notices under Section 143(2) and 142(1) were issued. Assessee filed objections against initiation of proceedings under Section 148, which was disposed of vide letter dated 16.01.2013. Notice under Section 142(1) was issued on 26.02.2013 to Assessee requiring to justify its claim of 100% deduction on temporary site accommodation at Rs. 5,98,17,813/and to furnish complete details of tool, minor equipments, etc., for which it claimed deduction of Rs. 10,34,07,097/- . No reply was submitted and, thereafter, Assessing Officer passed revised assessment order dated 30.03.2013 adding Rs. 5,53,31,477/- , Rs. 8,78,96,032/- and Rs. 3,06,37,641/- (total Rs. 17,38,65,150/). Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falls under clause (b); (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year. Explanation.-In determining income chargeable to tax which has escaped assessment for the purposes of this subsection, the provisions of Explanation 2 of section 147 shall apply as they apply for the purposes of that section." (emphasis added) 10. He submitted that in the present case, since amount of escapes assessment was more than one lac rupees, therefore, period of limitation is not four years but six years, and, admittedly, notice was issued within the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 989 power to reopen the assessment is much wider. Court further observed: "However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to reopen assessments on the basis of "mere change of opinion", which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to reassess. The Assessing Officer has no power to review; he has the power to reassess. But reassessment has to be based on fulfillment of certain precondition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of reopening the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion if the reason for his belief that the conditions are satisfied, does not exist or is not material or relevant to the belief required by the section. The court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the court". 17. In Calcutta Discount Co. Ltd. Vs. ITO (1961) : 41 ITR 1919 (SC), Court held that duty of disclosing primary facts relevant to the decisions of the question before assessing Authority lies on the Assessee and it is onerous duty of Assessee to disclose truly and fully all the primary facts. Once all the primary facts have been disclosed, Assessee thereafter is not required to provide any further assistance by way of disclosure to Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permitted, for no valid reason, will open flood gate for arbitrary action exposing one to unending process, permitting uncertainty, reopening of closed chapters without assigning good reason, depending upon whims of individuals and in the end precipitating anomalous situations." 20. Court further said that what naturally follows is that there has to be some valid ground, that is some relevant document or material having escaped notice or there has been wrong calculation due to human error bona fide committed, or ignorance of correct and complete facts due to mistake or ignorance of fraud/ misrepresentation. 21. Looking to the aforesaid exposition of law and applying to the facts of the present case, it is not in dispute that Assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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