9911796707
TMI Blog2023 (8) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... TPO) due to International Transactions. TPO passed an order dated 23rd October, 2017 under Section 92CA(3) of the Income Tax 1961 (the Act) making an upward adjustment of Rs. 77,22,054/-. As assessment under Section 143C(3) r/w. Section 144C(13) of the Act was completed on 31st October 2017, assessing Petitioner's income at Rs. 7,87,14,030/-. 2. Thereafter, Petitioner received a notice dated 27th March 2021 for Assessment Year 2013-14 under Section 148 of the Act stating that there were reasons to believe that Petitioner's income chargeable to tax for Assessment Year 2013-14 has escaped Assessment within the meaning of Section 147 of the Act. The reasons to believe was made available to Petitioner vide a communication dated 7th July 2021 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion, objectively. In the present case, since the assessee has failed to substantiate its transaction with above mentioned parties, it leads to enough cause for forming or belief by the undersigned regarding of income during the year under consideration." 3. The proposed re-opening is after expiry of four years from the end of relevant Assessment Year. The proviso to Section 147 (1) of the Act, therefore, will apply which provides that no Assessment can be reopened after the expiry of four years from the end of relevant Assessment Year unless there has been failure on the part of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2015 and various details that were submitted vide letters dated 10th September 2015, 23rd October 2015 and 16th November 2016. Further in paragraph 2 of the said letter, Petitioner has recorded as under:- "Foreign Exchange Gain: Foreign exchange gain of Rs. 1,22,04,501/- is accrued due to forex rate fluctuation on loan repayment. The company plea that loan given/ taken is capital account transaction and exchange fluctuation earn on it is not taxable due to capital receipt. Detail note is attached for your reference and record. Ann. No.2." Annexure 2 is a copy of an opinion dated 13th November 2014 from an Advocate in which Petitioner has been advised to treat gain on foreign exchange fluctuation as capital gain and, therefore the gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Deputy Commissioner of Income Tax [2021]131 taxmann.com 52 (Bombay) and it reads as under:- "It is settled settled law that where the assessment is sought to be reopened after the expiry of a period of four years from the end of the relevant year, the proviso to section 147 stipulates a requirement that there must be a failure on the part of the assessee to disclose fully and truly all material facts necessary. Since in the case at hand, the assessment is sought to be reopened after a period of four years, the proviso to section 147 is applicable. It is also settled law that the Assessing Officer has no power to review an assessment which has been concluded. If a period of four years has lapsed from the end of the relevant year, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tt. CIT [WP No.2760 of 2019, dated 24-8-2021], relied upon by Mr. Pardiwalla, it is held that the reasons for reopening an assessment should be that of the Assessing Officer alone who is issuing the notice and he cannot act merely on the dictates of any another person in issuing the notice. In Indian & Eastern Newspaper Society v/s. CIT [1979] 2 Taxman 197/119 ITR 996 (SC), also relied upon by Mr. Pardiwalla, the Court held that in every case, the Income Tax Officer must determine for himself what is the effect and consequence of the law mentioned in the audit note and whether in consequence of the law which has come to his notice he can reasonably believe that income had escaped assessment. The basis of his belief must be the law of which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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