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2019 (5) TMI 551 - HC - Income TaxReopening of assessment u/s 148 - payment of EPF contribution was not made in the prescribed time and added to the total income the aforesaid amount according to section 2(24)(x) read with section 36(1)(va) - deduction for belated payment of EPF contribution paid before due date of filing the return allowed in original assessment - HELD THAT:- For any sum received by the assessee from any of his employees to which the provisions of subclause (x) of clause 24 of section 2 apply, deduction thereof can be allowed only if such sum is credited by the assessee to the employee's account in the relevant fund or funds on or before the due date as per the provisions of the Employees' Provident Fund Act. AO however, formed a belief that income has escaped assessment without considering the fact that the assessee has fully and truly disclosed all material facts which is evident from the impugned notice itself. Therefore, the Assessing Officer cannot issue notice under section 148 to reopen a concluded assessment i.e. scrutiny assessment u/s 143(3) of the Act beyond a period of four years in absence of existence of any tangible material outside of the existing record and in absence of failure on part of the petitioner to disclose truly and fully all material facts necessary for assessment for the relevant assessment year. Admittedly, no new fact is brought on record by the Assessing Officer and nor there is any failure on part of the petitioner to disclose fully and truly all material facts necessary for the relevant assessment year and, therefore, as per First Proviso to section 147 of the Act, Assessing Officer cannot assume jurisdiction. The record of the case shows that the respondent has called for all the details during the assessment proceedings including the tax audit report and computation of income which were duly submitted and were considered at the time of original assessment proceedings. Petitioner was claiming deduction for belated payment of Employee's Provident Fund contribution as it was paid before due date of filing the return. The petitioner also relied upon various decisions which were available at the relevant point of time for filing the return of income. Therefore, as all the relevant details called for were submitted and perused during the course of original assessment proceedings and the Assessing Officer after considering the same, accepts the claim of the petitioner. The respondent, therefore, now seeks to reopen the assessment on mere change of opinion, which is not permissible in law and on that count also the impugned notice cannot be sustained.- Decided in favour of assessee.
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