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2011 (11) TMI 304 - HC - Income TaxValidity of re-opening of assessment after a period of four years from the end of the relevant A.Y. - reasons disclosed for re-opening the assessment ex-facie do not contain any reference to a failure on the part of the Assessee to disclose fully all material facts necessary for the assessment – re-opening of an assessment in relation to matters which are the subject matter of an Appeal, Reference or Revision – A.Y. 03-04 – Held that:- In the present case, ex-facie, there is no statement in the reasons disclosed by the A.O. that there was a failure on the part of the Assessee to disclose fully and truly all material facts necessary for the assessment. Further, the ground on which the assessment is sought to be re-opened relates to the write off of bad debts u/s 36(1)(vii) which is the subject matter of an appeal before the CIT(Appeals). The power to reopen an assessment cannot be exercised to re-open what formed the subject matter of an appeal to the CIT (Appeals). Also, Assessee vide its separate application for rectification have pleaded that the officer ought to have granted a deduction of an amount of 7.5% of the total income and not of the lesser amount of the business income. Hence, on this aspect of the matter, we are of the view that Assessing Officer duly informed in law could not possibly come to the conclusion that there is an escapement on this ground. Thus, the notice issued u/s 148 is set aside - Decided in favor of assessee.
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