9911796707
TMI Blog2021 (4) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... 09. 2. The ld. Counsel for the assessee submits that original assessment order was passed u/s 143(3) of the Act on 29.12.2010 and thereafter notice was issued u/s 148 of the Act dated 13.12.2015 for re-opening of the assessment u/s 147 of the Act. He referred to the reasons recorded for re-opening of the assessment and submitted that nowhere in these reasons recorded, there is a whisper or allegation that there was a failure on the part of the assessee to fully and truly disclose the material facts required for assessment, as mandated in the proviso to Section 147 of the Act as the re-opening of assessment was beyond four years from end of assessment year. Thus he argued that the re-opening of assessment is bad in law. He relied on certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly, the re-opening of assessment is after the expiry of four years from the end of assessment year 2008-09 and hence the proviso to Section 147 of the Act comes into play. A reading of the reasons recorded for re-opening of assessment shows that there is no allegation made, that there is failure on the part of the assessee to truly and fully disclose material facts necessary for the assessment. Under these circumstances, we have to hold that the re-opening of assessment is bad in law. 4.2. This Kolkata 'A' Bench of the Tribunal in the case of M/s. Beekay Steel Industries Ltd. vs. DCIT, CC-XXX, Kolkata in ITA No. 105/Kol/2015, order dated 31.05.2017 considered the legal issue and the propositions of law laid down by various High Courts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case do confirm our apprehension about the harm that a less strict interpretation of the words "reason to believe" vis-à-vis an intimation issued under section 143(1) can cause to the tax regime. There is no whisper in the reasons recorded, of any tangible material which came to the possession of the assessing officer subsequent to the issue of the intimation. It reflects an arbitrary exercise of the power conferred under section 147." 4.7. The Hon'ble Delhi High Court in the case of Haryana Acrylic Manufacturing Co. v. Commissioner of Income-Tax and Anor. reported in [2009] 308 ITR 38 (Delhi) has held as follows: "26. Viewed in this light, the proviso to section 147 of the said Act, carves out an exception from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return. Since there was no failure to make the return, the escapement of income cannot be attributed to such failure. This leaves us with the escapement of income chargeable to tax which arises out of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year. If it is also found that the petitioner had disclosed fully and truly all material facts necessary for its assessment, then no action under section 147 could have been taken after the four year period indicated above. So, the key question is whether or not the petitioner had made a full and true disclosure of all material facts? 29. In the reasons supplied to the petitioner, there is no whisper, what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut jurisdiction. Reiterating our view-point, we hold that the notice dated 29.03.2004 under section 148 based on the recorded reasons as supplied to the petitioner as well as the consequent order dated 02.03.2005 are without jurisdiction as no action under section 147 could be taken beyond the four year period in the circumstances narrated above. 4.8. Applying the propositions laid down in the above case law to the facts to this case, we have to necessarily hold that the re-opening of the assessment proceedings is not valid that there is not even a whisper in the reasons recorded for the reopening of the assessment that there is a failure on the part of the assessee to disclose fully and truly all the necessary material facts required fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
