9911796707
TMI Blog2022 (11) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... sment which is clear from the recorded reason to believe itself. Tribunal has not committed any error in applying the judgment passed in the case of Dinesh Kurmar Sah [ 2018 (5) TMI 1176 - GUJARAT HIGH COURT] .Consequently, the question of law framed in this case is answered against the department. - Hon ble Mr. Justice Aparesh Kumar Singh And Hon ble Mr. Justice Deepak Roshan For the Appellant : Mr. Ratnesh Nandan Sahay, Adv For the Respondent : Mr. Mahendra Kumar Choudhary, Adv. ORDER Heard learned counsel for the parties. 2. This appeal is directed against the order dated 06.03.2020 passed by the Learned Income Tax Appellate Tribunal ( ITAT ), Ranchi Bench 'SMC' Ranchi in the Appeal, being I.T.A No.259/Ran/2019, for the A.Y. 2010-11; whereby the learned ITAT has allowed the appeal preferred by the Respondent and held that the notice under Section 148 of the Income Tax Act, 1961 issued in the present case was bad in law as the same was allegedly issued only for the purpose of verification. 3. The facts giving rise to the instant appeal relates to the assessment year 2010-11. The Respondent is an Assessee under the Income Tax Act having i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an/2019 for the A.Y. 2010-11. The Learned tribunal vide its order dated 06.03.2020 in ITA No.259/Ran/2019 for the A.Y.2010-11 allowed the said appeal of the Respondent herein and quashed the assessment order dated 20.11.2017 passed in the case of the Respondent for Assessment Year 2010-11. The revenue being aggrieved by the order passed by the learned ITAT preferred the instant appeal. 4. The aforesaid case was admitted by this Court vide order dated 10th May, 2022 on following questions of law; 1. Whether in the facts and circumstances of the case the reasons to believe recorded by the Assessing Officer is sufficient to proceed in the case under Section 148 read with Section 147 ofthe Income Tax Act for re-assessment of the case of the assesse for the assessment year 2010-11; 2. Whether in the facts and circumstances of the case, the impugned order passed by the learned I.T.A.T. is perverse in the eye of law. 5. Mr. Ratnesh Nandan Sahay, learned senior standing counsel for the appellant/Revenue submits that the learned ITAT was not justified in law in quashing the Assessment Order by squarely applying the judgment of the Hon'ble High Court of Gujarat passed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the averments made therein, it appears that the Assessing Officer had reopened the assessment of the Respondent Assessee and issued notice under Section 148 of the Income Tax Act, 1961 for the assessment of income concerning A.Y 2010-11. However, the Respondent chose not to file any return. In the meantime, the Assessing Officer had received information that the CBI, ACB, Dhanbad had lodged F.I.R regarding the land scam. In the said FIR, the son and the husband of the Respondent Assessee including herself were accused of criminal conspiracy, abetment and fraud. Finally, after analyzing the facts and records, the AO passed the Re-Assessment Order, dated 20.11.2017, under Section 144 read with Section 147 of the Income Tax Act, 1961. The Assessee preferred appeal before CIT(A). However being unsuccessful, the Assessee again preferred appeal before learned ITAT who allowed the appeal preferred by the Assessee; hence Revenue is before us. 8. To decide the issue in hand it is necessary to deal with Section 147 and 148 of the Act which is quoted herein below:- [147. Income escaping assessment.-If the [Assessing Officer] [has reason to believe] that any income chargeable to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax; (b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return; [(ba) where the assessee has failed to furnish a report in respect of any international transaction which he was so required under section 92E;] (c) where an assessment has been made, but- (i) income chargeable to tax has been underassessed; or (ii) such income has been assessed at too low a rate; or (iii) such income has been made the subject of excessive relief under this Act ; or (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed;] [(ca) where a return of income has not been furnished by the assessee or a return of income has been furnished by him and on the basis of information or document received from the prescribed income-tax authority, under sub-section (2) of section 133-C, it is noticed by the Assessing Officer that the income of the assessee exceeds the maximum amount not chargeable to tax, or as the case may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med to be a valid notice: Provided further that in a case- (a) where a return has been furnished during the period commencing on the 1st day of October, 1991 and ending on the 30th day of September, 2005, in response to a notice served under this section, and (b) subsequently a notice has been served under clause (ii) of subsection (2) of section 143 after the expiry of twelve months specified in the proviso to clause (ii) of sub-section (2) of section 143, but before the expiry of the time limit for making the assessment, reassessment or recomputation as specified in subsection (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice.] [Explanation.-For the removal of doubts, it is hereby declared that nothing contained in the first proviso or the second proviso shall apply to any return which has been furnished on or after the 1st day of October, 2005 in response to a notice served under this section.] [(2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.] 9. By going through the aforesaid definition it is abundantly clear that before opening ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential that before such action is taken the requirement of law should be satisfied. Further, this Court in the case of Naveen Kumar Jaiswal Versus Income Tax Department- W.P.(T) No. 675 of 2022 (Ranchi) reported in 2022 SCC Online Jhar 189, has held at paragraph 11 and 12 has held as under; 11. It is well settled principles with regard to reassessment. A reassessment proceeding is to be adjudged on the basis of reason to believe disclosed to the Assessee and the said reasons cannot be supplemented by the revenue as the reasons have to speak for themselves. 12. The law is now no more res-integra that the reasons are required to be read as they were recorded by the assessing officer. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn based on reasons not recorded. The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded by the AO cannot be supplemented by filing affidavit or making oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches to the Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
