Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2021 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (3) TMI 912 - HC - Income TaxReopening of assessment u/s 147 - AO did not add any income as deemed income while allowing deduction under section 35(1)(ii) - HELD THAT:- We are of the view that the impugned notice for reopening could be said to have been issued without there being any tangible material to come to the conclusion that there is escapement of income. There is no live link to form a belief, more particularly, when the Assessing Officer during the course of the original assessment had raised queries with regard to both the issues by issuing notices under section 142(1) of the Act, 1961 which were duly replied by the petitioner. AO during the course of the regular assessment proceedings, had passed the assessement order, under Section 143(3) of the Act after due consideration of the replies filed by the writ-applicant, wherein, the details of donation given by the petitioner to the Gujarat Cancer Society Limited has been disclosed together with the photographs of the receipts dated 30th March, 2013, to claim the allowance under Section 35 read with Section 80GGA of the Act. Writ-applicant claimed the deduction under Section 35(1)(ii) of the Act in the revised return dated 26.02.2014, and the assessment order, under Section 143(3) of the Act was passed on 15.10.2012 considering the revised return. Therefore, it cannot be said that the writ-applicant had failed to disclose, truly and fully, all the material facts so as to claim the deduction of 175% by showing the income as the business income. On perusal of the reasons recorded, it appears that the Assessing Officer has changed his opinion with regard to the claim of assessee without considering the provisions of Section 80GGA read with Section 35(1)(ii) which provides deduction in respect of certain donation for the scientific research or rural development to any research association or institution, approved for the purpose of clause (ii) of Sub-section (1) of Section 35 of the Act. The writ-applicant has claimed deduction under Section 35(1)(ii) of the Act and not under Section 80GGA of the Act. This fact is also disclosed by the assessee in the revised return. When there is no failure on the part of the petitioner-assessee to disclose, truly and fully, material facts, the Assessing Officer cannot reopen the assessment on the basis of “mere change of opinion”, as there is no tangible material to come to the conclusion that there is escapement of income from assessment. We have reached to the conclusion that the impugned notice under Section 148 of the Act for reopening of the assessment is not sustainable in law. - Decided in favour of assessee.
|