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TMI Blog2025 (4) TMI 1493X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 11.11.2019. 2. The petitioner for assessment year 2012-13 filed return declaring 'nil' income. The assessment under Section 143 (3) of the Act was finalized on 30.03.2014. Subsequent proceedings for assessment initiated on basis of revised return filed for correcting error in claiming depreciation were dropped on 19.03.2015 considering that the assessment has already been completed. On 29.03.2019 notice under Section 148 of the Act was issued. The reasons that the information received from Director General of Income Tax (Investigation) Mumbai (for brevity 'DGIT') form basis that there is escaped assessment were supplied on 05.08.2019. The petitioner filed objection dated 10.10.2019. On dismissal of objection CWP No. 20943/2019 was filed. While issuing notice, the order if passed in pursuance to SCN was made subject to outcome of writ. CWP No. 21086/2019 was filed challenging the reassessment order dated 11.11.2019. 3. Learned counsel for the petitioner submits that the proceedings were initiated in absence of tangible material and solely relying upon the third party information. The argument is that the assessment was finalized under Section 143 (3) of the Act and impugned S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers." In Raymond Woolen Mills Limited vs. Income Tax Officer, Centre XI, Range Bombay and others reported in [(1999) 236 ITR 34 (SC)] law laid is:- "3. In this case, we do not have to give a final decision as to whether there is suppression of material facts by the assessee or not. We have only to see whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Income-tax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Commissioner of Income Tax and Ors. reported in [(2022) 449 ITR 251], the Court held :- "11. Thus, the consistent view is that where the proceedings have not even been concluded by the statutory authority, the writ court should not interfere at such a premature stage. Moreover it is not a case where from bare reading of notice it can be axiomatically held that the authority has clutched upon the jurisdiction not vested in it. The correctness of the order under section 148A(d) is being challenged on the factual premise contending that jurisdiction though vested has been wrongly exercised. By now it is well settled that there is vexed distinction between jurisdictional error and error of law/fact within jurisdiction. For rectification of errors statutory remedy has been provided." The SLP filed against this decision was dismissed on 02.09.2022 and following order was passed:- "1. What is challenged before the High Court was the reopening notice under section 148A (d) of the Income-tax Act, 1961. The notices have been issued, after considering the objections raised by the petitioner. If the petitioner has any grievance on merits thereafter, the same has to be agitated before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as finalized under Section 143 (3). Thereafter the petitioner filed revised return correcting the clerical error in claiming the depreciation. On the basis of the revised return the assessment proceedings were initiated but dropped on 19.03.2015, considering that there cannot be two assessment for an assessment year and the issues on merit were not gone into. 14. The objection that while dropping the assessment proceedings vide order dated 19.03.2015 the AO had not taken cognizance of the information given by DGIT was rightly rejected. There was no occasion for AO to go into any other issue after holding that the proceedings cannot continue in view of assessment having already been completed. 15. The contention that the proceedings were initiated merely on receipt of information from the investigation wing and without application of mind, lacks merit. 16. On receipt of material from the investigation wing a preliminary enquiry was held by the AO. Issuance of notice under Section 133 (6) revealed that the transaction pertained to Assessment Year 2012-13 and not to 2013-14. There is a tangible material available with the AO to make basis for having reasons to believe that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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