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2023 (2) TMI 596 - HC - Income TaxReopening of assessment u/s 147 - notice beyond the period of four years - Reasons to believe - whether there has been any failure to disclose material facts fully and truly by the assessee? - HELD THAT:- In the present case although the A.O. has recorded in the reasons that there was failure on the part of the assessee to disclose fully and truly material facts, it failed to identify as to what was that material fact which was not disclosed by the assessee which if so disclosed could have prevented the escapement of income. The alleged failure to disclose appears to be nothing but a statement to somehow overcome the hurdle of reopening the assessment beyond four years. A.O. could have proceeded to reopen the assessment only if he had reason to believe that ‘income had escaped assessment’. Even in the present case there appears to be no tangible material with the A.O. as can be seen from the reasons recorded and that the reference was made only to the records of the assessment. It thus appears that between the date of the order of assessment and the date of the issuance of notice, nothing new had happened. There was no new information received by the Assessing Officer nor was any reference made to any new material on record. A.O. was simply attempting to accord a fresh consideration on the issue of deduction under Section 80P of the Act claimed and allowed in favour of the Petitioner. We cannot forget that the order of assessment passed in the case of the assessee was under Section 143(3) of the Act. Petitioner had specifically claimed the deduction u/s 80P which was not only reflected in the return of income but also gone into specifically as can be seen from the notice issued u/s 142(1) of the Act where by the details of various deductions and exemptions along with documentary evidence had been sought for by the A.O., which finally led to the passing of the order of assessment where by while certain disallowances were made in respect to certain items, the claim of deduction under Section 80P was allowed. It is settled law that if a query is raised during the assessment proceedings and the assessee submits a reply thereto, leading to the passing of the order of assessment, a reopening in the absence of any new tangible material would be nothing but a change of opinion - Decided in favour of assessee.
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