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TMI Blog2024 (7) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby it is difficult to hold that the petitioner has not fully and truly disclosed the material facts. When the then AO has framed the assessment under the provisions of section 143 (3) of the Act, all the documents were furnished by the petitioner and therefore now in absence of any new and/or tangible material, keeping in mind the contents of the reasons recorded if notice u/s 148 is issued on the same material, in our considered opinion, the same is nothing but the mere change of opinion which is not permissible in eye of law. In absence of failure on the part of the petitioner to disclose fully and truly all material facts, the notice u/s 148 is issued beyond the period of four years the same is not even otherwise permissible. Assessee appeal allowed. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Petitioner(s) No. 1 : Ms Vaibhavi K Parikh (3238). For the Respondent(s) No. 1 : Mrs Kalpana K Raval (1046). ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA) 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 18.03.2020 under section 148 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 dated 18.03.2020 came to be issued by the revenue seeking inter alia to reopen the case of the petitioner for the year under consideration. 2.9 Pursuant to the aforesaid notice, the petitioner filed return of income on 04.06.2020 and further requested to supply copy of reasons recorded for reopening the case for the year under consideration. The respondent in furtherance thereto, supplied copy of reasons recorded vide its letter dated 21.10.2020. 2.10 The petitioner raised objections against reopening somewhere in November, 2020 with all factual and legal contentions. However, the respondent vide its order dated 10.02.2021 disposed of such objections and held that reopening is justified. 2.11 Being aggrieved and dissatisfied by the aforesaid, the petitioner has approached this Court by way of this petition for the appropriate writ, direction or order. 3. We have heard learned Senior Advocate Mr. Tushar Hemani with learned advocate Ms. Vaibhavi Parikh for the appellant and learned advocate Mr. Rudram Trivedi for learned advocate Ms. Kalpana Raval for the respondent. 4. Learned Senior Advocate Mr. Hemani for the petitioner submitted that the reopening of the assessment at the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rudram Trivedi while supporting the notice has made following submissions: 6.1 Learned advocate Mr. Rudram Trivedi for the Revenue vehemently opposed the petition contending inter alia that the petition being at premature stage as reassessment is yet to be finalized, in any case, adversaries to the assessee, the appeal under the provisions of Income Tax Act before the CIT(A) and the Tribunal are available. 6.2 Learned advocate Mr. Trivedi further submitted that certain export incentives, interest and other claims accrued, and though the assessee was following mercantile system of accounting, such accruals were not routed through profit and loss account and thereby the assessee cannot said to have made full and true disclosure as to income. Thus, the notice under section 148 beyond the prescribed period is maintainable that the same may not be thereby discarded as beyond the limitation. 6.3 Learned advocate Mr. Rudram Trivedi submitted that although the proceedings under section 143 (3) was undertaken by the then Assessing Officer, however, there was no active consideration and/or deliberation on the issue which is now sought to be taken up by way of issuance of notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act was made on 29.03.2016. Since, 4 years from the end of the relevant year has expired in this case, the requirements to initiate proceeding u/ s 147 of the Act are reason to believe that income for the year under consideration has escaped assessment because of failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the assessment year under consideration. It is pertinent to mention here that reasons to believe that income has escaped assessment for the year under consideration have been recorded in above para. 6. It is true that assessee had filed a copy of annual report and audited P L a/c and Balance sheet along with return of income where various information /material were disclosed. However the requisite full and true disclosure of all material facts necessary/for assessment has not been made as noted above. It is also pertinent to note here that, even though the assessee has not produced books of accounts, annual report, audited P L a/c. And balance sheet or other documents as mentioned above, the requisite material facts as noted above in the reasons for reopening were embedded in such a manner that material e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 21.03.2015, framed the assessment under the provision of section 143 (3) of the Income Tax Act, 1961 meaning thereby, in our view, the Assessing Officer was in possession with all the relevant material including the profit and loss account as well as the balance-sheet at the time when the assessment order was framed under section 143 (3) of the Act. Therefore, the Revenue was well within their possession of all the relevant materials and thereby it is difficult to hold that the petitioner has not fully and truly disclosed the material facts. 10. In addition to the aforesaid, at the time when the then Assessing Officer has framed the assessment under the provisions of section 143 (3) of the Act, all the documents were furnished by the petitioner and therefore now in absence of any new and/or tangible material, keeping in mind the contents of the reasons recorded if notice under section 148 is issued on the same material, in our considered opinion, the same is nothing but the mere change of opinion which is not permissible in eye of law. 11. Considering the said aspect, more particularly, in absence of failure on the part of the petitioner to disclose fully and truly all materi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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