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TMI Blog2022 (6) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... n the part of the assessee to disclose fully or truly necessary material facts necessary for the assessment and that some new material facts have come to his possession which was not made available by the assessee at the time of regular assessment. It is also admitted position that in this case regular assessment under Section 143(3) of the Act was made and it is not a case of summary assessment. It also appears on perusal of the recorded reasons that the successor of the assessing officer who intends to invoke the provisions of Section 147 of the Act on the ground and by taking a view that the disallowance which was made under Section 36(i)(iii) of the Act in course of regular assessment should have been more than the amount which has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing alleged escapement of income. - Decided in favour of assessee. - WPO 575 of 2017 - - - Dated:- 15-6-2022 - THE HON BLE JUSTICE MD. NIZAMUDDIN Mr. J.P. Khaitan, Sr. Adv. Ms. Nilanjana Banerjee Pal, Adv. for the petitioner Mr. Dhiraj Trivedi, Asst. S.G. Mr. Amit Sharma, Adv. for the respondents ORDER The Court: Heard learned counsel appearing for the parties. In this writ petition petitioner has challenged the impugned notice under Section 148 of the Income Tax Act, 1961, dated 31st March, 2017, relating to assessment year 2010-11 and the impugned order dated 13th September, 2017 rejecting the petitioner s objection to the aforesaid impugned notice under Section 148 and the proceedings under Section 147 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010-11 and needs to be re-assessed. Admittedly impugned reassessment proceeding under Section 147 of the Act has been initiated after expiry of four years from the end of the relevant assessment year. Petitioner challenging the aforesaid impugned assessment proceeding submits that impugned notice under Section 148 and the proceedings under Section 147 of the Act is bad in law since it does not fulfil the criteria for reopening of reassessment after expiry of four years from the end of relevant assessment year that in addition to escapement of income additional duty cast upon the assessing officer is to establish that the escapement was due to omission or failure on the part of the assessee to disclose fully or truly necessary materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable or was undisclosed or suppressed by the assessee/petitioner in course of regular assessment. From the recorded reason it appears that one of the grounds for reopening of the assessment is that in regular assessment there was mistake of calculation in disallowance under the aforesaid provisions of the Act to which I am of the view that if at all there was any clerical/arithmetical mistake apparent from record then recourse was available to the assessing officer by way of rectification under Section 154 of the Income Tax Act, 1961 and that cannot be a ground of reopening of an assessment for correcting a mistake in calculation of an amount of disallowance causing alleged escapement of income. Mr. Khaitan, learned senior counsel app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling at the time of regular assessment cannot be called an omission or failure on the part of the assessee in disclosing fully and truly the material facts necessary for the relevant assessment. He also relies on a decision of the Hon ble Supreme Court in the case of Income-Tax Officer vs. Techspan India Private Ltd. and Another reported in (2018) 404 ITR 10 (SC) particularly paragraph 13 of the said judgment which is quoted hereunder : 13. The fact in controversy in this case is with regard to the deduction under section 10A of the Income-tax Act which ws allegedly allowed in excess. The show-cause notice dated February 10, 2005 reflects the ground for reassessment in the present case, that is, the deduction allowed in excess un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , was based on nothing but a change of opinion on the same facts and circumstances which were already in his knowledge even during the original assessment proceedings. Learned counsel appearing for the respondent Income Tax Authority submits that this Court should not interfere with the reassessment proceeding under Section 147 of the Act since no procedural irregularity has been committed by the assessing officer and there was escapement of income due to wrong claim made by the assessee/petitioner. Such submission is not convincing and after perusing original assessment order under Section 143(3) of the Act as well as recorded reason for impugned reopening of the assessment and considering the submissions of the parties, relevant rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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