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2022 (1) TMI 830 - ITAT KOLKATAValidity of Reopening of assessment u/s 147 - assessee's case was selected for scrutiny - eligibility of reason to believe - Case reopened on the basis of information received from the DDIT (Inv), Unit-IV(1), Kolkata - notice after the expiry of four (4) years from the end of the relevant assessment year - HELD THAT:- AO has to record his reason to believe escapement of income and if he intends to reopen an assessment which has been framed earlier u/s. 143(3) after the expiry of four (4) years from the end of the relevant assessment year, then he has to clearly record the additional condition precedent in the reasons recorded that the escapement of chargeable income was due to the failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. And it is settled that when there is challenge to the validity of the reasons recorded in the AO to usurp the jurisdiction, then the reasons recorded by the AO should be read as it is i.e., on a standalone basis. No addition or deletion is allowed in the reason recorded. In the light of the aforesaid discussion, a plain reading of the impugned reasons recorded by the AO to reopen (supra) it nowhere mentions that there has been any failure on the part of the assessee to disclose fully and truly all material facts for assessment. Therefore relying on ratio decidendi of PHILIPS CARBON BLACK LIMITED VERSUS ASSISTANT COMMISSIONER OF INCOME TAX AND ORS. [2019 (3) TMI 993 - CALCUTTA HIGH COURT] and other High Courts (supra) we find force in the contention of the Ld. A.R. that the essential jurisdictional fact as necessary for usurpation of jurisdiction u/s. 147 first proviso is absent, without which the AO does not enjoy the jurisdiction to reopen the assessment which has been framed originally u/s. 143(3) of the Act. Assessee succeeds in its challenge in respect of usurpation of jurisdiction without satisfying the first proviso to Section 147 of the Act in the facts and circumstances of the case. Therefore we are inclined to quash the notice of the AO issued u/s. 148. Therefore all consequential actions fall being non-est in the eyes of law. - Decided in favour of assessee.
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