TMI Blog2021 (12) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... Act was initially allowed by Respondent No.1. The duty of assessee is only to disclose fully and truly all primary facts and the duty ascertaining inferential facts as well as drawing necessary inference is on the Assessing Officer. We are satisfied that petitioner had discharged duty cast upon it and therefore even after there was failure on the part of Respondent No.1 to perform his duty, cannot justify initiation of proceedings under Section 147 of the Act. Also well settled that mere change in opinion by a succeeding Assessing Officer would not justify an exercise of jurisdiction under Section 148 of the Act. In the present case, the assessment for the Assessment Year 1992-93 was completed after due enquiry on 12th January, 1995. From the documents annexed to the petition, it is clear that petitioner s claim for deduction under Section 80 I of the Act was under consideration by the Assessing Officer who had sought details as to how the same was computed and petitioner had furnished details. Petitioner has clarified that the profits to determine after deduction from the gross operating earnings direct operating expenses, standing expenses, depreciation and interest charged. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 33AC of the Act was allowed to the extent of ₹ 9,68,45,988/-. Petitioner received a communication dated 7th September, 1994 from respondents calling upon petitioner to furnish, inter-alia, ship-wise working of deduction under Section 80 I of the Act. Petitioner filed reply dated 22nd November, 1994 answering all the queries along with the return as well as in the course of the assessment proceedings has furnished fully and truly all material facts necessary for the purpose of its assessment. 3. Respondent No.1 by an order dated 12th January, 1995 made under Section 143 (3) of the Act completed petitioner's assessment and determined petitioner's gross total income at ₹ 10,31,67,156/-. From the figures that was arrived allowance for deduction under Section 80M of the Act of ₹ 63,21,168/- was allowed and the deduction that was allowable under Section 80 I of the Act was restricted to ₹ 9,68,45,988/- in accordance with Section 80A (2) of the Act and accordingly assessed petitioner to NIL income. Subsequently, Respondent No.1 rectified the assessment by passing an order dated 30th November, 1995 under Section 154 of the Act. Pursuant to this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated as petitioner has been allowed deduction under Section 80 I of the Act which is not in accordance with law and this assessment is in view of a letter dated 14th December, 2000 from Respondent No.1 seeking clarification in respect of the claim for deduction under Section 80 I of the Act. 5. This court by an order dated 25th February, 2002 issued Rule and granted interim relief. Respondent waived service and filed affidavit in reply. The reasons for re-opening is annexed to the affidavit in reply dated 5th November, 2011. There is nothing substantial in the affidavit in reply. 6. We have perused petition, reply, rejoinder and the documents annexed thereto with the assistance of Mr. Pardiwalla and Mr. Sharma. 7. Mr. Pardiwalla submitted that three conditions to issuing notice under Section 148 of the Act is provided in Section 147 of the Act. Mr.Pardiwalla submitted that if the Assessing Officer has reason to believe that any income chargeable to tax which has escaped assessment for any Assessment Year he may assess or re-assess such income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of proceedings but where an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice. Mr. Pardiwalla also submitted that notwithstanding petitioner not filing return in response to notice under Section 148 of the Act, the court in its wisdom thought it fit to issue rule and also grant interim relief on 25th February, 2002. 10. As held by this court, the Hon ble Apex Court and many other court, before proceedings under Section 148 of the Act can be validly initiated certain preconditions which have to be complied with by the Assessing Officer : (a) First of all he must have reasons to believe that income chargeable to tax has escaped assessment. (b) That the said escapement must be on account of failure on the part of assessee to disclose fully and truly all material facts necessary for its assessment for the said year when the proceedings have been initiated after a period of four years from the end of the Assessment Year to which they relate and in this case it has been initiated after expiry of period of four years. (c) Prior to issuance of notice under Section 148 of the Act, the Assessing Officer has to record his reasons on the basis of which he forms an opinion that income chargeable to tax has escaped assessment. (d) The sanct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cast upon it and therefore even after there was failure on the part of Respondent No.1 to perform his duty, cannot justify initiation of proceedings under Section 147 of the Act. 12. It is also well settled that mere change in opinion by a succeeding Assessing Officer would not justify an exercise of jurisdiction under Section 148 of the Act. In the present case, the assessment for the Assessment Year 1992-93 was completed after due enquiry on 12th January, 1995. From the documents annexed to the petition, it is clear that petitioner s claim for deduction under Section 80 I of the Act was under consideration by the Assessing Officer who had sought details as to how the same was computed and petitioner had furnished details. Petitioner has clarified that the profits to determine after deduction from the gross operating earnings direct operating expenses, standing expenses, depreciation and interest charged. It was only after considering the same that Respondent No.1 having been satisfied with the correctness of petitioner claim allowed the deduction. In our view, the exercise to reopen a validly framed assessment is merely on the basis of change of opinion by succeeding Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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