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TMI Blog2021 (4) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... the presence of materials on record, if the power under Section 147 is invoked by the competent authority, then the authorities competent must be allowed to proceed with the reopening proceedings by following the procedures as contemplated. High Court cannot adjudicate the disputed facts and materials to form an opinion in a writ proceedings. The High Court, under Article 226 of the Constitution of India, is empowered to scrutinize the process, through which, the decision is taken and the reasons and in consonance with the statutory requirements, but not the decision by itself. Thus, the scope of Article 226 of the Constitution of India cannot be expanded for the adjudication of the disputed facts and circumstances with reference to the documents, evidences produced by the respective parties and such an adjudication must be allowed to be done by the competent authorities under the provisions of the Statutes by following the procedures as contemplated and by affording opportunity to the assessee. As in these writ petitions, the respondent could able to establish that sufficient materials are available for the purpose of reopening of assessment for the Assessment Years 2009-10 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner and it was furnished. 4. In respect of W.P.No.38186 of 2016, the petitioner states that, they filed its return of income for the Assessment Year 2010-11 on 29.09.2010, declaring a total income of ₹ 174,37,64,170/-. The petitioner's return was processed and the petitioner was issued an intimation of the same. The case of the petitioner was selected for scrutiny and a notice was issued under Section 143 (2) of the Income Tax Act dated 29.08.2011 was issued. Thereafter, the assessment order was passed under Section 143(3) of the Act on 18.12.2012. An addition to the tune of ₹ 85,08,293/- was made to the petitioner's income. Accordingly, a notice of demand of a sum of ₹ 42,61,760/- dated 18.12.2012 was also issued to the petitioner. Under these circumstances, the respondent issued a notice under Section 148 of the Act dated 26.09.2014, seeking reopening of the petitioner's income tax assessment for the assessment year 2010-11. The reasons for reopening of the assessment as sought for by the petitioner and it was furnished. 5. On 13.04.2016, the petitioner wrote a letter to the respondent, seeking reasons on the basis of which the petitioner&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated after the order passed by the Tribunal and therefore, the respondent has not even considered the findings made by the Tribunal in its order. Thus, the impugned orders are liable to be set aside. 10. The respondent filed a common counter affidavit, contending that the proceedings initiated for the Assessment Years 2009-10 and 2010-11 was dropped vide letter dated 15.03.2016 as the issues contained in the reasons recorded by the Assessing officer was satisfactorily explained by the assessee. 11. However, the Department came to be in possession of certain new issues emanating from the Hon'ble Justice MB Shah Commission Report on illegal mining in the State of Odisha. Examination of the said report revealed that based on the Vigilance Enquiry Report of the State Government, the Hon'ble Justice MB Shah Commission noted that there was shortage of stock of 3,04,568.175 MT valued at ₹ 182,74,09,050/- and gave a finding that the lessee, (M/s.Indrani Patnaik), with the help of the raising contractor M/s.Triveni Earth Movers Private Limited, the assessee, has clandestinely disposed off the material without any records, for which, no Royalty and Sales tax has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was confirmed by the High Court, contended that when the Assessing Officer received fresh materials and has reason to believe, there is an escape of income from assessment, then he is empowered to independently go through the details and the materials available on record and further, in the present case, those details and materials adjudicated before the Tribunal and in a writ petition are not connected. However, even if the petitioner claims that it is connected, it is for the petitioner to place all the materials before the Assessing Officer for the purpose of adjudication. Contrarily, the Assessing Officer cannot form an unilateral opinion in respect of the issues adjudicated before the Tribunal and in a writ petition. As far as the reasons for reopening communicated to the petitioner are concerned, the details regarding the new materials identified as well as the discrepancies were categorically stated. However, the learned Senior counsel appearing on behalf of the petitioner contended that all such informations were adjudicated by the Tribunal and the order of the Tribunal was confirmed by the High Court. Thus, there is no cause for reason to believe that there was an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the High Court in a writ petition, as the writ petitioner company itself is not a party to the proceedings nor the issues for reopening raised now form part and parcel of the order passed by the High Court in the writ petition. 17. The reasons for reopening of assessment intimated to the writ petitioner reveals that from revised 26AS details, the assessee company has received contract receipts of ₹ 5,78,10,06,904/-, on which, tax at source has been deducted to the tune of ₹ 12,54,24,815/-. The assessee company claimed the TDS of ₹ 12,41,50,256/-. However, the assessee company credited P L account as contract receipts and sales for ₹ 521,79,70,864/- only. Thus, the assessee has not offered receipts of ₹ 56,30,36,040/- for taxation, resulting in escapement of income due to failure on the part of the assessee company to correctly account its income. Thus, the Assessing officer has reason to believe that income of ₹ 57,97,88,686/- has escaped assessment within the meaning of Section 147 of the Income Tax Act due to the failure on the part of the assessee company to disclose fully and truly all material facts necessary for its assessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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