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TMI Blog2020 (10) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of belief. In Foramer France [2003 (1) TMI 101 - SC ORDER] observing that the law prevailing on date of issue of impugned notice would apply to instant case, and since new section 147 had come into force w.e.f. 01.04.1989, provisions of that section were applicable, held that since admittedly there was no failure on the part of the petitioner to make return or to disclose fully and truly all material facts necessary for assessment, proviso to section, which bars issue of notice u/s 148 after expiry of 4 years from end of relevant assessment year, squarely applied to facts of instant case and therefore, impugned notice was barred by limitation. In the instant case, the AO has issued the notice u/s 148 beyond 4 years from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first place as is evident from the original assessment order. 2. On the fact and in the circumstances of the case and in law, the Ld. CIT(A) erred in not deciding the appeal on merits with regard to the issue of disallowance under section 40(a)(ia) of the Act, ignoring the fact that the Assessing Officer has followed the provisions of section 147 of the Income Tax Act, 1961, as he had sufficient reason to believe that the income chargeable to tax had escaped assessment. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in not deciding the appeal on merits with regard to the issue of disallowance under section 40(a)(ia) of the Act ignoring the ratio laid down by the Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g deduction of bad-debt another for non deduction of TDS. Therefore, the provisions of chapter XVIIB are applicable to assessee's case and that as TDS was not deducted provision u/s 40(a)(ia) are attracted deduction of expenditure is not admissible. In view of the above, I have reason to believe that the assessee has concealed particulars of its income, income chargeable to tax of ₹ 5,11,23,710/- , in the meaning of section 147 of the I. T. Act. Therefore, I have reason to believe that the assessee has concealed particulars of its income, and therefore, income chargeable to tax, has escaped assessment in the of the meaning of section 147 of the I. T. Act. 3.1 In response to a query raised by the AO to explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges and once satisfied that no addition needs to be made for the same, the AO completed the assessment without making any adjustment to the total income. The issuance of the notice u/s. 148 recording that the income had escaped assessment as the appellant did not comply with the TDS provisions is nothing but change in opinion of the appellant, which is not permissible under law as well as plethora of judicial precedents mentioned above. In light of the facts and judicial analysis, I am of the view that the re-opening of the assessment is due to change in opinion of the AO and accordingly, not valid in law. The re-assessment proceedings are hereby dropped. This ground of appeal is allowed. Having held that the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be treated as an in-built test to check abuse of power by Assessing Officer and therefore, after 01.04.1989, the Assessing Officer has power to reopen, provided there is tangible material to come to conclusion that there is escapement of income from assessment ; reasons must have a live link with formation of belief. In Foramer France (supra), the Hon ble Supreme Court, observing that the law prevailing on date of issue of impugned notice would apply to instant case, and since new section 147 had come into force w.e.f. 01.04.1989, provisions of that section were applicable, held that since admittedly there was no failure on the part of the petitioner to make return or to disclose fully and truly all material facts necessary for ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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