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TMI Blog2022 (10) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, this Court feel that even that rejection order may not be justifiable as it is not in the expected line within the meaning of the provisions of law as well as the decision made by the law Courts. Therefore, this Court feels that in order to rectify these violations or mistakes before proceeding further in the Section 147 proceedings, the matter can be remitted back to the respondent. This Court is inclined to dispose of this writ petition with the following order: That the impugned order is set aside and the matter is remitted back to the respondent for reconsideration. While reconsidering the same, the objection given by the petitioner shall be considered objectively by the respondent / assessing authority within the parameters as has been indicated especially in the context of first proviso to Section 147 and also the law laid down in Schwing Stetter India (P) Ltd. [ 2015 (6) TMI 497 - MADRAS HIGH COURT ] case. After having considered the same, a reasoned order shall be passed meeting this point discussed above and any other possible ground to be raised or urged by the petitioner. Depending upon such order to be passed considering the objections and still th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax Appellate Tribunal (ITAT), where the appeal is pending. 6. Thereafter, the third respondent, having taken note of the modified return furnished by the petitioner, passed an order modifying the assessment on 30.11.2021, whereunder, the Transfer Pricing adjustment as made under the final assessment order was deleted. The third respondent also issued notice under Section 148 of the Act for the Assessment Year 2014-15 on 30.03.2021, which according to the petitioner has been issued after the expiry of 4 years, stating that allegedly the income has escaped assessment. 7. In the said notice under Section 148 of the Act or even in the earlier rejection order of the primary objection in this regard by the petitioner making objections nowhere the third respondent has stated that he has reason to believe that there has been escaped assessment during the relevant Assessment Year because of the non-disclosure of details fully and truly as expected, by the assessee. 8. Therefore, on the main ground that the notice issued by the Revenue under Section 148 of the Act is beyond the limitation of 4 years period, in the absence of specific reason to be recorded as stated above to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material or basis, the Assessing Officer has reason to believe that there has been an escaped assessment for the particular assessment year on the part of the assessee, which is mandated by decisions of the law Courts. The rejection order made on the objection of the petitioner / assessee by order dated 03.01.2022, according to the learned counsel for the petitioner, is completely vitiated. Therefore, he seeks indulgence of this Court against these orders, which are impugned herein. 14. In support of this ground raised in this regard as stated above, the learned counsel for the petitioner has mainly relied upon the Hon'ble Division Bench decision of this Court in the matter of Commissioner of Income-tax, Chennai Vs. Schwing Stetter India (P) Ltd. [reported in (2015) 378 ITR 380 (Madras)], where the ultimate proposition as has been held by the Hon'ble Division Bench reads thus: 22. In the light of the above, we hold that when the Assessing Officer had failed to record anywhere his satisfaction or belief that the income chargeable to tax had escaped assessment on account of the failure of the assessee to disclose truly and fully all material facts necessary for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 143(3) of the Act that would not ipso facto give rise to the petitioner / assessee to claim that he has fully and truly disclosed all material facts at the time of original assessment or revised assessment. 18. In aid of this, the learned Standing counsel has relied upon Explanation 1 of the Proviso to Section 147, where it is stated that, production before the Assessing officer of account books or other evidence from which material evidence come with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. 19. By relying upon this Explanation 1, the learned Standing counsel would vehemently content that in these cases, assuming that the petitioner s return was accepted and assessment was completed for which the petitioner had disclosed certain material/books of accounts etc., that alone would not be considered to be full and true disclosure to go to a safe conclusion that the petitioner is not liable to be fit in in the 4th limb of the first proviso to Section 147. 20. Suppose the Assessing Officer has come to the conclusion, of course, prima facie by way of any scrutiny that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d within the six years period, even according to the first proviso to Section 147, four special circumstances have been mentioned. It is a case of the Revenue also that, the case of the petitioner can be fit in only in the fourth circumstance, where failure to fully and truly disclose all materials, which are necessary for his assessment. It is one of the reason under which, if the Assessing Officer has reason to believe that there has been escaped assessment then under Section 147 of the Act proceedings can be initiated. If that being so, in the present case in fact, a detailed objection had been made by the petitioner on 21.12.2021 against the initiation of proceedings under Section 147. Though the said objection has been rejected through the impugned communication dated 03.01.2022, as has been rightly pointed out by the learned counsel appearing for the petitioner, the prime reason or objection cited by the petitioner side against the point of limitation by showing the fact that the Assessing Officer has not recorded any specific reason as to how he has come to a belief that there has been an escaped assessment, whether has been considered or not is to be looked into. 25. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see, this alleged escaped assessment has occurred. This is what expected under law and this is the proposition held by the Hon ble Division Bench of this Court in the cited judgment. 31. When that being the position, the present notice issued on 30.03.2021 under Section 148 of the Income Tax Act along with the rejection order dated 03.01.2022 of the objection raised by the petitioner cannot be stated to be the justifiable orders within the meaning of law laid down by this Court in the aforesaid Division Bench judgment. 32. No doubt, under Section 148 notice, the minimum statement is enough, where, the detail as to how the Assessing Officer concerned has reason to believe that there has been an escaped assessment, need not be disclosed. But, in the communication giving reasons for re-opening, it should have been stated. Moreover, in the rejection order dated 03.01.2022, when this reason was specifically objected to, that should have been also dealt with by giving reasons as to why the objection raised by the petitioner against the limitation i.e., beyond four years up to six years has to be rejected. In the absence of any such reasons stated in the rejection order dated 03.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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