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TMI Blog2021 (7) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... ot expected to adjudicate the disputed facts with reference to the accounting system followed or the materials which all are to be adjudicated with reference to the documents and evidences. This being the factum and the principles to be followed, this Court has no hesitation in forming an opinion that the petitioner is bound to cooperate for the completion of reopening of assessment proceedings initiated under Section 147 of the Act, by producing all the relevant materials and documents and the authorities competent are expected to complete the process by affording opportunity to the writ petitioner, as contemplated and as expeditiously as possible. Petitioner made a submission that the reason for reopening of assessment is the assessment order passed for the Assessment Year 2009-10. However, the said assessment order was reversed by the Income Tax Appellate Tribunal in its order dated 06.01.2016. Therefore, the reasons furnished for reopening of assessment is not in existence as of now and therefore, the authorities cannot proceed further. This Court is of the considered opinion that the order of the Tribunal, its findings, as well as the applicability with reference to the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material and the reopening of assessment is based on change of opinion, the respondents issued an impugned order, rejecting the objections filed by the petitioner. Thus, the petitioner is constrained to move the present Writ Petition. 3.The learned counsel for the petitioner reiterated that there is no fresh materials available for the purpose of reopening of assessment, beyond the period of four years. In the present case, the petitioner has submitted all the books of accounts, statements, etc., at the time of reopening assessment and during subsequent proceedings. Thus, the reopening of proceedings are not falling under the scope of proviso clause under Section 147 of the Act and thus, the impugned rejection order is to be set aside. The learned counsel for the petitioner emphasised that reopening of assessment beyond four years must be done strictly in consonance with the proviso clause and in order to establish the conditions, the authority competent must have tangible material. Thus, in the absence of any such material available on record, reopening of assessment is untenable and in violation of the proviso clause to Section 147 of the Act. 4.The learned Standing Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly, in the present case, the reopening is made beyond the period of four years and within a period of six years. In furtherance of the proviso clause to Section 147, explanations 1 and 2 are also relevant to consider the circumstances narrated in the proviso clause to Section 147. Incidentally, if the Assessing Officer forms an opinion that the assessee has not disclosed the materials fully and truly, as required, then, he is empowered to reopen the assessment, beyond the period of four years. Even in such circumstances, the materials, informations relied on is to be in consonance with the other ingredients contemplated under the Act for the purpose of reopening of assessment. In this regard, explanation 1 to Section 147 contemplates that production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered, the Assessing Officer, will not necessarily amount to disclosure within the meaning of the foregoing proviso. Therefore, even in case where the assessee had submitted all the books of accounts or other evidences, then also, there is a possibility of reopening of assessment, on the ground that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the scope and scheme of act is vibrant enough to ensure that the income chargeable to tax are not allowed to escape from the assessment. Therefore, the assessees are to be provided with the opportunities contemplated and if still they are not cooperative in settling the issues in accordance with the provisions of the Act and based on the informations and materials, then they are bound to face the consequences. 8.In the present case, the opportunities provided under the Act were availed of by the petitioner. They have submitted objections. The objections were considered. Reason for reopening is also furnished and in the rejection order impugned, the authorities have categorically stated therefore, it is clear that this treatment to be given on the retention monies held back by the assessee company from its contracts, but claimed as expenditure by debiting it fully in the P/L account, there had been no true disclosure of material facts by the assessee either in the return of income, annual reports, disclosures, audit reports, memo of total income, neither has the Assessing Officer sought them, nor has the assessee during the course of scrutiny proceedings volunteered to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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