TMI Blog2014 (11) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... he same facts would amount to change of opinion - the other condition precedent as found in the first proviso to Section 147 of the Act viz. failure to disclose truly and fully all material facts necessary for assessment is not satisfied as it is clear by virtue of letter dated 6 August 2007 in which the reasons which were communicated specifically refer to the material having been furnished and examined by the AO while passing the assessment order in regular proceedings – it could not be understood as to on what basis the AO states that whenever a notice beyond the period of 4 years from the end of the relevant AY is issued, it is implicit in such a notice that there was failure on the part of the assessee to fully and truly disclose all m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2) In both these petitions the impugned notices have been issued beyond the period of 4 years from the end of the relevant assessment year. In view of the first proviso to Section 147 of the Act before issuing a notice beyond the period of 4 years from the end of the relevant assessment year there should have been a failure on the part of the petitioner to fully and truly disclose all material facts necessary for assessment for the assessment year being sought to be reopened. Keeping in mind the above well settled position in law we shall now examine the two petitions. 3) As the facts and law are identical in both the petitions we shall for the sake of convenience refer to the facts in W. P. No.2637 of 2007 which are as under: a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.01.2003 at an income of ₹ 13,79,33,840/-. In the said assessment, the Assessing Officer had asked you to furnish details in support of your claim of exemption u/s.80IA. You had furnished expenses as per which it has been observed that there is a disproportionate allocation of expenses between the various units eligible and those not eligible for deduction u/s. 80IA. IN view of the above,the Assessing Officer has reopened your proceedings u/s.148,the reasons for which are being provided to you as under: The assessee in this case filed Return of Income on 27/11/2000 declaring income of ₹ 13,09,27,170/-. The assessment was completed u/s. 143(3) on 31/1/2003, assessing the income at ₹ 13,79,33,840/-. The assessed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 38.76% 2.59% 58.65% If the above expenses are reallotted correctly in ratio of the respective units, turnover, then the assessee's claim of deduction u/s.88IA will decrease and correspondingly the profits of non 80IA units would be increased as under: 1) Radio of turnover of non 80IA unit to total turnover 54.35% 2) Misc. expenses allotted to non 80IA Unit 79.11% of ₹ 2,29,34,657/- ₹ 1,81,43,607/- 3) Misc. Expenses allocable in ratio of turnover 54.35% ₹ 2,39,34,657/- ₹ 1,24,64,986/- Excess Misc. Expenses allotte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change of opinion was not dealt with. 4) The facts in Writ Petition No.2638 of 2007 relating to A.Y. 2001-02 are identical so far as reasons in support of the impugned notice, the objection of the petitioner and the manner in which the objections have been dealt with by the Assessing Officer in his order also dated 14 November 2007. 5) In terms of Section 147 of the Act whenever the Assessing Officer seeks to reopen an assessment beyond the period of 4 years from the end of the relevant assessment year not only he must have reason to believe that income chargeable to tax has escaped assessment but there is a failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment for that assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by recording the following: ........ Regarding the contention of your counsel that it was mandatory to also record that there was failure on the part of the assessee to fully and truly disclose all material facts relevant to its assessment, the same (contention) is implicit in the fact, that the notice has been issued for a period exceeding four years after the assessment year. Section 151(1) provides that for a notice u/s.148 to be issued in a case where an assessment made u/s. 143(3) has been made, and reopening is to be done four years beyond the assessment year, permission of the Commissioner of Income Tax is necessary. 6) We are unable to understand on what basis the Assessing Officer states that whenever a notice beyond the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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