9911796707
TMI Blog2021 (4) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... e ITO-2, Itsari for Assessment Year 2005-06. 2. The brief facts leading to the case is this that the appellant firm maintaining mercantile system of accounting derived income from warehousing filed its return of income on 29.10.2005 declaring income at NIL, assessment of which was completed under section 143(3) of the Act on 05.11.2007 on Nil income accepting the claim of 100% deduction under section 80IB(11A) of the assessee at Rs. 6,32,322/-. Later on it was found by the Learned Assessing Officer that such claim made by the assessee was incorrectly allowed whereupon after obtaining prior approval from the CIT, notice under section 148 of the Act dated 08.08.2011was served upon the assessee upon recording of reasons. The return already fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for claiming deduction under this particular section. He, therefore, relied upon the order passed by the Learned Assessing Officer under section 147 of the Act. 4. On the contrary the Learned Counsel appearing for the assessee submitted before us that the initiation of the proceeding under section 147 is bad in law. It was further submitted by him that the notice under section 148 was issued on 08.08.2011 i.e. after the expiry of 4 years from the end of relevant Assessment Year. In the absence of any tangible material, reopening of the assessment completed under section 143(3) of the Act is nothing but a "change of opinion". Furthermore the assessee answered the query made by the Ld. Assessing Officer effectively relating to the claim u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arehousing, the licence for running the same under the Madya Pradesh Krishi Godam Adhiniyam, 1947, the license granted by the MP Krishi Upaj Mandi Samiti, Itarsi, the license issued by MP Warehousing and Logistics Corporation, Bhopal, the body constituted by MP government. Consideration of those documents is also reflecting in the initial order of assessment under section 143(3) dated 05.11.2007 as on record before us. 6. Apart from that the reasons recorded for issuing notice under section 148 of the Act only speaks of incorrectly allowing the claim of the assessee of 100% deduction under section 80 IB(11A) of the Act of Rs. 6,32,322/-. However, the Ld. A.O has not brought any tangible material so as to draw a conclusion that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage of the first assessment. " 10. Similarly, in the present case, we find that in the reasons recorded there is neither any allegation that the assessee had failed to truly and fully disclose material facts at the time of the assessment nor can we readily infer the same Consequently, one of the essential ingredients for re-opening an assessment beyond the period of four years has not been satisfied in the present case. The re-assessment proceedings are, therefore, bad in law. The impugned notice under Section 148 dated 28.03.2012 as well as all proceedings pursuant there to, including the re-assessment order dated 22.03.2013 are set aside. The writ petition is allowed as above. There shall be no order as to costs" xxxxx. 7. Further t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded did not indicate the failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the Assessment Year 1998-99. While in the reasons supplied to the petitioner there was no mention of the allegation that there was a failure on the part of the assessee to disclose fully and truly all material facts, in the reasons shown in the said form to the counter affidavit there was a specific allegation that there was a failure on the part of the assessee to disclose fully and truly all material facts relating to accommodation entries raised from one of the companies to the extent of Rs. 5 lakhs. Thus, one of the conditions precedent for removing the bar against taking action after the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment relied upon by the assessee and as well as the Learned CIT(A), we find no justification in interfering with the order passed by the Learned CIT(A) in holding the decision of reassessment proceeding under section 147 of the Act for Assessment Year 2005-06 by issuing notice under section 148 of the Act as bad in law in the absence of mentioning of any allegation against the assessee in failing to disclose fully and truly the material facts in the assessment proceeding under section 143 (3) of the Act. Merely by making a statement in the reasons recorded that the assessee's claim of 100% deduction under section 801B(11A) of the Act was incorrectly allowed cannot be said to be justified in reopening the assessment. Such order, pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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