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TMI Blog2024 (6) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... ial facts necessary. In the given case, the assessment is sought to be reopened after a period of four years and the proviso to section 147 is applicable. The Hon ble Supreme Court in the case of Kelvinator of India Ltd [ 2010 (1) TMI 11 - SUPREME COURT] has laid down that the AO has no power to review but only to reassess based on any new material that has come to his possession. In assessee s case, from the perusal of records it is clear that the assessing officer has made the additions during reassessment based on the materials which are part of assessment records which have already been verified during the original assessment u/s.143(3). It is also noticed that the assessing officer has not brought on record any new material basis which the reopening is done and that the assessing officer has used the same material as has been considered during the original assessment under section 143(3) - Assessee appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... rect. This ground is partly allowed. The assessee is appeal before the Tribunal contending the issue of re-opening u/s 147 of the Act on legal grounds. 3. The Ld. AR submitted that the assessee filed the return of income on 30.09.2009 and the original assessment u/s 143(3) was completed on 23.12.2011. Accordingly, the re-opening u/s 147 of the Act vide notice dated 17.03.2016 is beyond four years. The Ld. AR further submitted that in assessee's case therefore the proviso to section 147 which reads as under is applicable :- Income escaping assessment. 147. If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) : Provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer cannot reopening the assessment unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, for that assessment year. Keeping in mind this position of law, we will now look at the facts in assessee's case. The assessing officer has recorded the following as the reason for reopening the assessment - 2. In this regard reasons recorded for re-opening in your case is reproduced hereunder: "On verification of records it is seen that during the Financial year relevant to A.Y.2009-10 the assessee has transferred certain development rights to three parties vis. M/s. Saral Enterprises, M/s. Neelkanth Mansions P. Ltd. and New Look Developers Private Ltd. for a consideration of Rs. 5.46 crore, Rs.42.47 crore and Rs.7 crore respectively and payment was received prior to assessment year 2006-07. In Notes to Accounts for the assessment year 2009.10, the trust disclosed that "the trust had entered into an agreement for transfer of right of development in favour of developer after obtaining necessary approvals and permissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing officer during the proceedings under section 143(3) of the Act, and that the assessing officer has also verified the same while completing the assessment. It is 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. In the given case, the assessment is sought to be reopened after a period of four years and the proviso to section 147 is applicable. The Hon'ble Supreme Court in the case of Kelvinator of India Ltd [2010] 320 ITR 561 (SC) has laid down that the AO has no power to review but only to reassess based on any new material that has come to his possession. Further the Hon'ble Bombay High Court in the case of Ananta Landmark (P.) Ltd. vs DCIT ([2021] 131 taxmann.com 52 (Bombay)) has considered a similar issue and held that - 17. We are satisfied that petitioner had truly and fully disclosed all material facts necessary for the purpose of assessment. Not only material facts were disclosed by petitioner truly and full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusively taken by the Assessing Officer, it would not be open to the Assessing Officer to reopen the assessment based on the very same material with a view to take another view. The principal which has been enunciated in Cartini must apply to the facts of a case such as the present. The assessee had during the course of the assessment proceedings made a complete disclosure of material facts. The Assessing Officer had called for a disclosure on which a specific disclosure on the issue in question was made. In such a case, it cannot be postulated that the condition precedent to the reopening of an assessment beyond a period of four years has been fulfilled." 18. It will be proper in the circumstances to quote a paragraph from the judgment of the Apex Court in Parashuram Pottery Works Co. Ltd. v. ITO [1977] 106 ITR 1, (cited by Mr. Pardiwalla), and it reads as under : "It has been said that the taxes are the price that we pay for civilization. If so, it is essential that those who are entrusted with the task of calculating and realising that price should familiarise themselves with the relevant provisions and become well versed with the law on the subject. Any remis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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