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TMI Blog2021 (5) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication and the Assessing Officer also passed an order under Section 143(3)of the Act, thereafter, if any materials are made available to establish that any income chargeable to tax has escaped assessment for the assessment year, then the Assessing officer is well within his power to institute proceedings under Section 147 of the Act. It is insufficient that the assessee has compared the reasons stipulated in the order by the respondents with reference to certain informations provided in the original assessment order. Beyond such comparable factors, with reference to the original assessment order and the reasons furnished for reopening of assessment, the Assessing Officer, if found any new materials, which were not considered, though provided, constitute a cause for 'reason to believe' regarding the income escaped assessment, then also the Assessing Officer is empowered to reopen the assessment by invoking the powers under Section 147 of the Act. Undoubtedly, the informations or materials etc., for reopening of the assessment must be new and not considered by the Assessing Officer during the original assessment. However, the word 'New' does not mean that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2005 as the return filed in response to the notice under Section 148 of the Act. The petitioner company, in the said letter, made a request to the respondents to furnish reasons to believe that income liable to tax had escaped assessment within the meaning of Section 147 of the Act. The respondent in their letter dated 05.05.2010, furnished reasons for reopening the assessment for the Assessment Year 2005-06. 4. The petitioner company, by their letter dated 27.05.2010, furnished their detailed reply along with annexure, requesting the respondent to drop the proceedings. However, the reply had not been considered and issued notice under Section 143 (2) dated 18.11.2010, fixing the date of hearing on 25.11.2010. The petitioner filed W.P.No.27139 of 2010 and this Court directed the respondent to consider the legal submissions taken by the petitioner on the aspect of jurisdiction by giving the assessee an opportunity to place their submissions. But, the writ petition was dismissed. The petitioner filed Writ Appeal in W.A.No.2646 of 2010 and the Hon'ble Division Bench of this Court passed an order as follows: This writ appeal is disposed of by modifying the order dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth are one and the same and therefore, it is only a change of opinion. Relying on the said details, the learned counsel for the petitioner made a submission that the impugned orders are liable to be set aside. 9. The learned counsel for the petitioner relied on the judgment of the High Court of madras in the case of PVP Ventures Ltd., Vs. ACIT, reported in (2016) 65 taxmann.com 21 (Madras) , wherein the Court held as follows: 30. As we have indicated earlier, cases where the reopening is found to be within the parameters of the prescription contained in Sections 147 and 148, the additions made subsequently in the course of the proceedings, have always been upheld by Courts. But, where the reopening of assessment cannot stand on the strength of the reasons recorded under Section 148(2), the Revenue cannot seek to justify the reopening, by finding some point or the other post-facto after the reopening of assessment. 31. Sub-Sections (1) and (2) of Section 148 and Explanation 3 under Section 147 contemplate two entry points or two gate ways. The first entry point or the outer gate is the formation of an opinion that there was some income, which escaped assessment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othing further remains to be decided in these appeals. As pointed out in the preceding paragraphs, the Assessing Officer, while reopening the assessment, has not disclosed the reasons for reopening. This is evident from the assessment order dated 05.03.1999, which only states that the assessment was reopened to consider certain points with prior permission of the Commissioner of Income Tax. Thus, the basic requirement for recording reasons to believe that income chargeable to tax has escaped assessment is absent in the instance case, which would be sufficient to hold that the reopening proceedings are wholly without jurisdiction. 35.In the light of the above discussion, we hold that the reopening proceedings was wholly without jurisdiction and we affirm the view taken by the Tribunal and accordingly, dismiss all the tax cases (appeals) filed by the Revenue by answering the first substantial question of law as framed above in favour of the assessee and hold that the Assessing Officer was not empowered to reopen the assessment for all the assessment years. Consequently the other substantial questions of law as framed are left open. 11. The Hon'ble Supreme Court of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The respondents have stated that the allegation of petitioner that its claim regarding Section 94(7) was examined by the respondent during the course of original proceedings is against facts and records. The petitioner did not produce any evidence to substantiate the claim of exemption on this issue in the original assessment. It is stated that two sheets of papers at page nos.142 143 of the typed set filed by the petitioners in the present writ petition were filed subsequently to the completion of original assessment proceeding and that is the reason why the petitioner not mentioned date of submission of the document in the index to typed set of papers. Therefore, the petitioner's claim that the details of two transaction coming under the Short term Capital gains were furnished and respondents had completed the Assessment under Section 143 (3) on 29.11.2007, after considering the same is absolutely incorrect. It is contended that the petitioner has come before the Courts with unclean hands and therefore, the writ petition is to be dismissed. 15. The respondent has stated that with regard to the petitioner's claim under Section 94 (7) was formed during the original as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer followed the decision of Calcutta High Court to reopen the assessment. The petitioner fails to note that the direction issued by the RBI cannot override the proviso of Income Tax Act as held by the Hon'ble Supreme Court in the case of Southern Technologies Ltd., reported in 320 ITR 577 . 19. When an income liable to tax has been escaped from assessment in the original assessment proceedings due to the oversight and inadvertence or mistake committed by the Assessing Officer, still he has the jurisdiction to reopen the assessment as held by the Hon'ble Supreme Court of India. 20. Relying on all these grounds, the respondent sought for the dismissal of the writ petition. 21. Relying on the above contentions, made a submission that the case on hand is the case of reopening within a period of four years and therefore, the contention of the petitioners are liable to be rejected. 22. The Courts have held that disputed facts and circumstances cannot be adjudicated in a writ proceedings and once, there is a reason to believe that the income has escaped from assessment, then the Assessing officer is empowered to institute proceedings under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om which material evidence could with due diligence havebeen discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. Therefore, even in case, where certain informations were drawn after passing of the assessment order and materials were identified, which all are not adjudicated, then the Assessing officer has reason to believe for reopening of the assessment. Undoubtedly, the power under Section 147 for the Assessing Officer is wider enough to intervene in all the cases, where any income chargeable to tax has escaped assessment for any assessment year. The escaped assessment includes even the subject matters considered in the assessment, which all are escaped, the word escape undertakes that it is not only the materials, which were not adjudicated during the original assessment but the materials adjudicated and certain aspects escaped from assessment during such original assessment. Thus, it is made clear that even the material facts, which all are provided by the assessee during the original adjudication and the Assessing Officer also passed an order under Section 143(3)of the Act, thereafter, if any material ..... X X X X Extracts X X X X X X X X Extracts X X X X
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