TMI Blog2017 (5) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... and allowed only after verifying the certificate and other documents in support of such claim. The reasons for reopening the assessment do not satisfy the jurisdictional pre-condition mandated by the first proviso to Section 147 of the Act, viz., to indicate clearly the failure on the part of the Assessee to disclose fully and truly all material facts necessary for the purposes of the assessment for AY 2009-10, the reopening cannot be sustained in law. - Decided in favour of assessee. - W.P.(C) 6448/2016 - - - Dated:- 22-5-2017 - S. MURALIDHAR VINOD GOEL JJ. Petitioner Through: Mr. Arvind Kumar, Advocate Respondent Through: Mr. Dileep Shivpuri, Senior Standing Counsel and Mr. Sanjay Kumar, Junior Standing Counsel OR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the assessment order passed, resulting in allowance of excessive deduction u/s 80IC to the tune of ₹ 2,60,59,569/-. Keeping in view of above facts, it is clear that the income of ₹ 2,60,59,569/has escaped assessment in the case of the assessee, being a case of allowance of excessive deduction u/s 80IC to which the assessee was not entitled. It is also evident that the income escaping assessment is more than ₹ 1,00,000/- in this case and is covered by the provision of Sec. 149(1)(b) of the of the IT Act. Also, by virtue of Explanation 1 2 given below provision to Sec. 147, this is a case where the facts were not fully and truly disclosed by the assessee at the time of original assessment proceedings. Since, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth true and full. In other words if it was either one and not the other, the first proviso Section 147 would still be attracted. In theory, this may be correct. But in a given case the Court will have to examine the reasons (and not the counter affidavit of the Revenue in reply to a writ petition) to ascertain if they point to a failure by an Assessee to make a full and true disclosure of material facts. The reasons have to speak for themselves. They cannot be supplanted by subsequent affidavits or written submissions much less oral arguments in Court. 7. In the present case the reasons for reopening do not enable a reader to ascertain in what manner the Assessee failed, when the original assessment took place, to make a full and true d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax under section 115JB of the Income Tax Act, 1961 . 8. Therefore, it is not as if the AO who finalsied the assessment under Section 143 (3) of the Act was not seized all the material facts and documents concerning the Assessee s claim under Section 80IC of the Act. Significantly, the AO in the said order stated that after verification the deduction under Section 80 IC amounting to ₹ 33, 68,85, 690 as claimed by the assessee is allowed. 9. Mr. Shivpuri submitted out that the reopening was on the basis of an audit objection and that the Supreme Court has in its decision in Larsen and Toubro v. State of Jharkhand 2017 SCC OnLine SC 347 emphasized the importance of the audit objection in the context of reopening of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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