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TMI Blog2017 (9) TMI 1896X X X X Extracts X X X X X X X X Extracts X X X X ..... ct . 2. The Revenue has raised several grounds in its appeal, however the crux of the issue is that the Ld.CIT(A) has erred in deleting the disallowance of Rs. 1,05,59,900/- made by the Ld.AO who had held it to be speculation loss and therefore cannot be set off against normal business loss. 3. The assessee has raised three grounds in its appeal however the crux of the issue is with respect to reopening U/s.147 & 148 of the Act. 4. The brief facts of the case are that the assessee is a private limited company engaged in the manufacturing and trading of billion and jewelry, filed its return of income for the assessment year 2009-10 on 24.02.2009, declaring total income of Rs. 59,75,709/-. Thereafter order U/s.143(3) of the Act was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the meaning of the foregoing proviso." This has been reiterated by the Hon'ble High court of Delhi in the case of Consolidated Photo & Finvest Ltd. v. ACIT [2006] 151 Taxman 41 as under: " ... the argument that production of the account books and other documentary evidence relevant for assessment must imply a full and true disclosure of all material facts must be rejected out of hand in the light of the provisions of Explanation (1) .. " 5.2 Further, the procedure laid down under the act and the Hon'ble Supreme Court's decision in the case of Mls.Kelvinator & Co. Ltd. have been followed while reopening the assessment proceedings in the instant case. In the above mentioned case, the Hon'ble Supreme Court had discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. If he discovers or finds or satisfies himself that the taxable income has escaped assessment, it would amount to saying that he had reason to believe that such income had escaped assessment. The justification for his belief is not to be judged from the standards of proof required for coming to a final decision. " 5.3* Further, reopening is based on a new finding of fact, totally different from the issues dealt in the original assessment. Since, the assessing officer had not applied his mind and formed any opinion on the issues for which the case has been re-opened during the original scrutiny proceedings, it cannot be argued that reassessment is based on change in opinion and hence for the same reason, the assessee is wrong in stating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complied with. Hence the Ld.AO did not have any jurisdiction to reopen the assessment in the case of the assessee which is beyond 4 years from the end of the relevant assessment year. The Ld.DR on the other hand relied on the order of the Ld.AO and the Ld.CIT(A). 5.3 We have heard the rival submissions and carefully perused the materials available on record. The Ld.AO in his order had relied on many case laws, however he has not mentioned as to what was the failure on the part of the assessee to disclose any material fact fully and truly which was necessary at the time of assessment on the earlier occasion U/s.143(3) of the Act. It is apparent from the facts of the case that the assessee has produced the details with respect to the loss of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of failure of Assessee to disclose truly and fully all material facts necessary for assessment, notice issued u/s 147 beyond period of four years is wholly without jurisdiction and cannot be sustained." 5.4 Considering the facts of the case and the decision cited by the Ld.AR supra, we are of the considered view that the Revenue has no jurisdiction to reopen the case of the assessee U/s.147 of the Act which is beyond the period of four years from the end of the relevant assessment year, further the assessee had fully and truly disclosed all materials at the time of original assessment U/s 143(3) of the Act and no fresh materials had surfaced for the assessment to be reopened. Therefore, we hereby quash the order of the Ld.AO passed U/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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