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2020 (12) TMI 221 - AT - Income TaxReopening of assessment u/s 147 - Non issue of notice u/s 143 - contention of the Revenue that since the assessee did not file return of income pursuant to notice u/s. 148 AO was justified in not issuing notice under sub-section (2) of section 143 of the Act - HELD THAT:- Since assessee pursuant to the section 148 notice has replied to the AO to treat the original return filed by it, as return pursuant to notice under section 148 which fact has been admitted/acknowledged by the AO in the first paragraph of the impugned re-assessment order dated 28.03.2016. AO was not justified in not issuing notice u/s 143(2) of the Act before framing reassessment order u/s 147/143(3) of the Act, therefore we find no merit in the contention of the revenue. The revenue has cited the decision in Areva T & D India Ltd. [2006 (11) TMI 166 - MADRAS HIGH COURT] to support their ground on this legal issue - in the light of the Hon’ble Supreme Court’s decision in the case of Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] as well as in the case of Oberoi Hotels Pvt. Ltd. [2018 (6) TMI 1472 - CALCUTTA HIGH COURT] we are bound by the decisions of the Hon’ble Supreme Court and jurisdictional High Court, therefore, we are not further going into the merit of this contention of the revenue. Therefore no merit in the contention of the revenue and, therefore, we confirm the action of Ld CIT(A) on this legal issue and consequently, the ground nos. 2 and 3 of revenue stand dismissed. Original assessment was completed u/s. 143(3) - more than four years have elapsed after passing the order - Whether failure of the assessee to disclose fully and truly all material facts necessary for the assessment for the assessment year ? - HELD THAT:- In this case original assessment was completed under Section 143(3) of the Act and such concluded assessment when sought to be reopened beyond four years, it is not only necessary for the AO to form reasonable belief that income had escaped assessment as envisaged in Section 147 of the Act but additionally he has to show that such escapement occurred as a result or consequence of assessee’s failure to disclose truly and fully all facts necessary for assessment. It is to be kept in mind that the AO after obtaining information and documents from the assessee cannot supplement/supplant his conclusion about assessee’s failure to disclose truly and fully material facts, if the recorded reasons do not refer to such failure. Where the AO initiates the reassessment proceedings beyond four years from the end of the relevant assessment year, then the AO is duty bound to demonstrate in his reasons recorded prior to issue of notice, the failure on the assessee’s part to truly and fully disclose all material facts in the course of original assessment, which in this case, the AO has not made even a whisper to that effect, therefore, the essential condition precedent as stipulated in first proviso to section 147 of the Act has not been satisfied, therefore, the AO could not have usurped the jurisdiction without satisfying the same, therefore, we find no infirmity in the order of Ld. CIT(A) on this issue also, so we confirm the impugned action of Ld CIT(A) on this legal issue and so revenue’s ground no. 1 fails.
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