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2019 (9) TMI 491 - AT - Income TaxValidity of the notice u/s. 148 - non disclosures of specific charge - non-disallowance u/s. 40A(3) - HELD THAT:- The obligation on the assessee extends to furnishing the relevant, primary facts, and the inference to be drawn therefrom, viz. as to admissibility or otherwise of a specific claim or allowance, is to be by the Revenue authorities - CIT v. Burlop Dealers Ltd. [1971 (1) TMI 10 - SUPREME COURT] . The impugned order completely fails to address this specific charge by the assessee. It could also be argued that the relevant account having been furnished on being called for during the original proceedings, the same can only be regarded as having been examined thereat by the assessing authority, who though chose not to make any disallowance u/s. 40A(3). Reference to the said account in the instant proceedings, thus, amounts to a review, a change of opinion, impermissible in law. The argument, valid in principle, would however require the assessee to show that it was show caused qua the impugned disallowance (u/s. 40A(3)), or otherwise queried in its respect, in the original proceedings. And which has not been at any stage. The Revenue has thus not been able to show the assessee’s failure to disclose the relevant facts, only which would qualify its’ action for reopening as valid in law, with, on the contrary, the assessee exhibiting otherwise. - Decided in favour of assessee.
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