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2014 (12) TMI 936 - HC - Income TaxValidity of reopening of assessment u/s 147 and 148 - Failure on the part of assessee to disclose fully and truly all the material facts or not - Notice dated 29 March 2012 seeking to reopen assessment has been issued after the expiry of four years from the end of the relevant AY i.e. 1999-00 - Held that:- Neither the notice dated 29 March 2006 nor the reasons supplied in support specifically state that there was any failure on the part of the assessee to disclose fully and truly all the material facts necessary for its assessment for the relevant AY – as held in Hindustan Lever Ltd. vs. R. B. Wadkar, Assistant Commissioner of Income Tax & Ors. (No. 1) [2004 (2) TMI 41 - BOMBAY High Court] - it is necessary whilst supplying the reasons for the issuance of notices u/s 147 and 148 of the Act to communicate as to which fact or material was not disclosed by the Assessee fully and truly, that has resulted in the income escaping assessment - apart from there being no allegation that there was any failure on the part of the petitioner to fully and truly disclose all material facts necessary for assessment, even otherwise, the reasons as recorded give no clue whatsoever as to the alleged failure on the part of the petitioner in disclosing fully and truly, the material facts necessary for its assessment - the jurisdictional parameter, for invoking the provisions of Section 147 of the Act is absent, on both the grounds mentioned in the reasons in support of the notice. Not only was there no failure to disclose fully and truly all the material facts in relation to the determination of MAT liability u/s 115JA, but further such disclosed material facts were duly considered by the AO in making the Assessment Order dated 21 March 2002 u/s 143(3) - issuance of notice and the consequent assessment order is in excess of jurisdictional restraint imposed upon the AO by the proviso to Section 147. Availability of alternative remedy – Held that:- The petition was lodged on or about 25 January 2007 and admitted on 26 March 2007 - at the stage when the petition was filed, the reassessment order dated 26 December 2006 had already been passed - the issues raised, do not involve any disputed questions of fact – AO has not adhered to the jurisdictional restraints imposed by proviso to Section 147(1) of the Act and further there is violation of principles of natural justice - If all such circumstances are cumulatively considered, rejection of the present petition on the ground of availability of alternate remedy is not appropriate - Decided in favour of assessee.
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