TMI Blog2014 (11) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... is inexplicable for over 10 years and no explanation is forth coming – thus, the Revenue has given up/withdrawn its claim for rectification in view of the proceedings for reopening of assessment – thus, the notice uis set aside – Decided in favour of assessee. - Writ Petition No. 2662 of 2007 - - - Dated:- 12-11-2014 - M. S. Sanklecha And S. C. Gupte,JJ. For the Petitioner : Mr. R. Murlidhar Mr. Atul K. Jasani For the Respondent : Mr. Arvind Pinto ORDER (Per: M S Sanklecha,J.) This petition assails notice dated 23 March 2007 issued under Section 148 of the Income Tax Act, 1961 ( the Act ). The impugned notice by the Assessing Officer seeks to reopen the assessment for Assessment Year 2000-01. 2) Briefly, the facts relevant to this petition are as under: a) On 28 November 2000, the petitioner filed its Return of Income for Assessment Year 2000-01 declaring a total income of ₹ 31,650/-. The Return of Income was accompanied by computation of income and audited balance sheet and profit and loss account . In its computation of income the petitioner had made a note that dividend income of ₹ 2.28 crores is fully exempt under Section 10(33) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduction of Section 94(7) of the Act w.e.f. 1 April 2002; f) Immediately after the above order of the Tribunal dated 28 February 2006, the Assessing Officer issued the impugned notice dated 23 March 2007 seeking to reopen the assessment proceeding for Assessment Year 2000-01.The reasons in support of the impugned notice as communicated to the petitioner read as under:- The assessee has filed the return of income for A.Y.2000-01 declaring total income of ₹ 31,650/-. In the assessment u/s. 143(3), the same total has been accepted by the Assessing officer. During the year, the assessee has earned total dividend income of ₹ 2.28,93,858/- form the following companies and claimed exemption u/s.10(33) of the I.T. Act, 1961 and this has been allowed by the assessing Officer in the above mentioned assessment order u/s. 143(3) of the I.T. Act,1961. 1. Dividend from M/s. Pentafor Rs.1.21,479/- 2. Dividend from M/s. Satyam Computer ₹ 6,300/- 3. Dividend from units of Mutual Fund 'Chole Mandalam' Rs.2,27,66,079/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions filed with the Assessing Officer challenging the impugned notice. It is submitted that the order disposing of the objections has not dealt with the objections. It is submitted that the impugned notice is without jurisdiction and needs to be set aside. It was also pointed out that the decision of the Special Bench of the Tribunal in Walfort Shares and Stock Brokers Ltd. (supra) has been upheld by the Apex Court in CIT vs. Walfort Shares and Stock Brokers Ltd. 326 ITR 01. 5) Mr. Arvind Pinto the learned Counsel for the Revenue supports the action of the authorities and submits that no interference is called for. 6) It is settled law in respect of reopening of assessment under the income Tax Act that the jurisdiction to reopen an assessment will only arise when the Assessing Officer himself has reason to believe that income chargeable to tax has escaped assessment. This reason to believe cannot be on the basis of change of opinion, i.e. where the issue was considered by the Assessing Officer in regular assessment proceedings and a particular view was taken (though not expressed/mentioned in the order). Moreover if the issue is concluded by an order of an higher forum, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, no particulars are given as to when, where, how and what material did he receive warranting the issue of impugned notice. In the order disposing of the objections, a bald reference to meet the above objection is made to the reasons recorded. On perusal of the reasons in support of the impugned notice we do not find any reason which indicates any failure on the part of the petitioner to disclose fully and truly all material facts necessary for assessment. Consequently, on the above ground itself, the impugned notice is without jurisdiction. 8) Besides, in the present facts, we find that during the course of regular scrutiny assessment proceedings, the petitioner in response to the queries of the Assessing Officer by replies dated 18 December 2002 and 28 January 2003 had filed details of the scrip-wise dividend received as well as profit and loss scrip-wise incurred in share trading, the period of holding of the shares and units in Mutual Funds were also disclosed. On consideration of the petitioner's response to the queries made during the scrutiny proceeding the Assessing Officer in the assessment order dated 24 March 2003 has specifically held the dividend income of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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