TMI Blog2014 (2) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... d assessment, he can reopen the assessment - The order of CIT(A) upheld - Decided against Revenue. - ITA No.1336/M/2012 - - - Dated:- 5-2-2014 - Shri D. Karunakara Rao And Shri Sanjay Garg,JJ. For the Petitioner : Shri Uttam Chand Bothra, A.R. For the Respondent : Shri Sanjeev Jain, D.R. ORDER Per Sanjay Garg, Judicial Member: The present appeal has been filed by the Revenue against the order of the Commissioner of Income Tax (Appeals) [hereinafter referred to as CIT(A)] dated 05.12.11. The Revenue is aggrieved from the action of the ld. CIT(A) in setting aside the assessment order framed by the Assessing Officer (hereinafter referred to as AO) under section 143(3) read with section 147 by holding that the same suffers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 22.12.06, allowed the appeal of the assessee by holding that the notice issued under section 143(2) was not in time and hence annulled the assessment order. Against the order of the ld. CIT(A) the Revenue filed an appeal to this Tribunal. The Tribunal vide its order dated 17.06.09 passed in ITA No.1166/M/07 dismissed the appeal of the Revenue and upheld the order of the ld. CIT(A). The AO thereafter observed that since the assessment in this case had been annulled on the legality of notice under section 143(2) of the Act and the case had not been heard on merits at any of the stage including appellate proceedings, hence, there was a reason to believe that the income assessed in this case had escaped assessment to that extent. So after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed for the assessment year 2004-05 at Rs.2,15,33,000/-. Aggrieved from the order of the AO, the assessee preferred appeal before the ld. CIT(A). 4. The ld. CIT(A) vide impugned order observed that it is a settled law that AO acquires jurisdiction to reopen assessment under section 147 read with section 148 only if on the basis of specific, reliable and relevant information coming to his possession subsequently, he has reasons, which he must record, to believe that by reason of omission or failure on the part of the assessee to make a true and full disclosure of all material facts necessary for his assessment during the concluded assessment proceedings, any part of his income, profit or gains chargeable to income-tax has escaped assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of survey on the basis of which a reasonable opinion or belief can be found. Merely stating that the assessee must be adopting the same modus operandi in the earlier years prior to assessment year 2004-05 was a subjective estimate of the AO, which could not form the basis for reopening the assessment. Since in the instant case assessment was reopened after four years, hence the AO had not attributed any failure on the part of the assessee to disclose truly and fully the material which required disclosure for making assessment. He therefore held that the action of the AO in reopening the assessment under section 143(3) read with section 147 suffered from lack of jurisdiction. He accordingly set aside the order of the AO. The Revenue is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case in hand no new material or evidence had come into the notice of the AO from which he would have got reason to believe for reopening of the assessment. Hence, the ld. CIT(A), in our view, was justified in setting aside the reopening of the assessment. Moreover, in this case no incriminating material relevant to assessment year under consideration was found during the survey action. The income for this year was assessed by the AO on the basis of assumption while assessing the income of the assessee for assessment year 2004-05 assuming that the assessee might be adopting the act of suppression of income for earlier years also. The ld. representative of the assessee has brought our attention to the fact that the Hon'ble jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X
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