TMI Blog2014 (9) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... be examined before issuing the notice u/s 148 of the Act, is whether the AO had formed an opinion - If yes, then the assessment is not amenable to jurisdiction u/s 148 of the Act - The enquiry for the purposes of forming of an opinion will different from person to person and in any case the depth of enquiry is not the test to determine the issue of formation of opinion - Where there is even a modicum of enquiry on an issue arising during assessment proceeding under Section 143(3) of the Act, it shall follow that there has been formation of opinion – Decided in favour of assessee. - Writ Petition No. 2857 of 2006, Writ Petition No. 2853 of 2006 - - - Dated:- 27-8-2014 - M. S. Sanklecha And N. M. Jamdar,JJ. For the Petitioner : Mr. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letters dated 7th January, 2003, 20th January, 2003 and 13th August, 2003, explained the gift of ₹ 12.80 lakhs received inter alia by furnishing a certificate of confirmation of gift of ₹ 12.80 lakhs from Mr. Arun Mehra. The above certificate indicated that the gift was given out of love and affection, as the Petitioner is related to him and the gift was given out of the NRO Account of the Petitioner in Punjab National Bank, Delhi. The certificate also give details of permanent account number of Mr. Arun Mehra and the details of the ward in New Delhi where he is assessed to tax in India. 4. On 11th November, 2003, the Assessing Officer passed an Assessment Order under Section 143(3) of the Act. In the above order, the Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the impugned notice are identical, save and except the amount of gift is ₹ 13 lakhs as against ₹ 12.80 lakhs in the case of the Petitioner in Writ Petition No.2857 of 2006. 6. On 13th June, 2006, the Petitioner filed his objection to the reopening of the assessment and inter alia, pointed out that the impugned notice has been issued, is a merely a change of opinion. This was so as the issue with regard to the gift of ₹ 12.80 lakhs, was subject matter of consideration while passing the assessment order dated 11th November, 2003. The Assessing Officer by order dated 20th October, 2006, rejected the Petitioner's objections on the ground that the Petitioner has not fully and truly disclosed all the material facts i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances, the impugned notice dated 31st March, 2006 ought not to be interfered with. It is submitted that in case the Petitioner satisfies the identity and genuineness of the gift during the assessment proceeding, then the Petitioner's declared income would not be disturbed even in reassessment proceedings. 9. The impugned notice dated 31st March, 2006 has been issued within the period of four years from the end of the relevant assessment year i.e. 2001-02. In cases of less then four years, even if there is true and full disclosure of all facts, yet an assessment could be reopened. The only requirement for reopening of an assessment within a period of four years is that Assessing Officer must have reason to believe that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by order dated 11th November, 2003 under Section 143(3) of the Act. 11. It is the contention of the RespondentRevenue that even if questions were asked during assessment proceedings, no opinion was formed by the Assessing Officer in the assessment order dated 11th November, 2003. This is because the order dated 11th November, 2003 does not refer to the issue of gift received by the Petitioner from Mr. Arun Mehra. The aforesaid submission is in the face of the concluded decision of our Court in Idea Cellular v/s. Deputy Commissioner of Income Tax, 301 ITR 107 wherein this Court observed as under: . . .. It was also sought to be contended that since the Assessing Officer had not expressed any opinion regarding this matter in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son and in any case the depth of enquiry is not the test to determine the issue of formation of opinion. Where there is even a modicum of eqnuiry on an issue arising during assessment proceeding under Section 143(3) of the Act, it shall follow that there has been formation of opinion. In view of the above, this objection of the RespondentRevenue that the Assessing Officer ought to have made further enquiry, is not sustainable. 13. The facts in Writ Petition No.2853 of 2006 are identical, save and except that in that Petition, the Petitioner received two gifts (i) ₹ 13 lakhs from Mr. Arun Mehra and (ii) ₹ 50,000/- from Ms. Preethi Sethi as indicated in the Petitioner's letter dated 7th January, 2003. It appears that therea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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