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2022 (1) TMI 434 - HC - Income TaxValidity of Reopening of assessment u/s 147 - Reopening beyond period of four years - Proof of failure on the part of assessee to disclose fully and truly all material facts necessary for its assessment - HELD THAT - Two conditions were required to be satisfied, firstly, the AO must have reasons to believe that income, profits or gains chargeable to income tax has escaped assessment, and secondly he must also have reason to believe that such escapement has occurred by reason of either omission or failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment of that year. Both these conditions has to be satisfied before the AO could assume jurisdiction for issue of notice u/s 148 read with Section 147(a). But under the substituted Section 147 existence of only the first condition suffices. If the Assessing Officer has reason to believe that income has escaped assessment, that was enough to confer jurisdiction to reopen the assessment. For this view of the AO, that for issuing notice to reopen assessment, the Assessing Officer must only be satisfied that he had reasons to believe that income, profits and gains chargeable to income tax has escaped assessment and the second condition that such escapement has occurred by reason of either omission or failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment is not required, Mr. Suresh Kumar in fairness agreed that that view of the AO was incorrect. Mr. Suresh Kumar, as an Officer of the Court, agreed that both these are preconditions which are required to be fulfilled when assessment is sought to be reopened after four years. See SESA GOA LIMITED VERSUS JOINT COMMISSIONER OF INCOME-TAX AND OTHERS. 2004 (5) TMI 54 - BOMBAY HIGH COURT . Therefore, it is quite obvious that there is nothing but change of opinion which is not permissible as held in Ananta Landmark Pvt. Ltd v/s. 2021 (10) TMI 71 - BOMBAY HIGH COURT . In the circumstances, we are satisfied that the notice dated 15/03/2019 under section 148 of the Act is issued without jurisdiction and requires to be set-aside. Decided in favour of assessee.
Issues:
Impugning a notice under section 148 of the Income Tax Act, 1961 for AY 2012-13 and rejection of objections to the notice issuance. Detailed Analysis: 1. The notice was issued after four years from the relevant assessment year, triggering the application of the proviso to section 147 of the Act. The onus is on the respondents to prove failure on the part of the petitioner to disclose all material facts necessary for assessment. 2. The reasons recorded for re-opening failed to disclose the material fact petitioner allegedly failed to disclose. The Assessing Officer must have reasons to believe income has escaped assessment due to omission or failure by the assessee to disclose all material facts. 3. A Division Bench held that the power to reopen an assessment is restricted by the proviso to section 147, limiting the time period to four years unless there is a failure to disclose material facts. The jurisdictional facts under section 147 must exist before issuing a notice under section 148. 4. The reasons for re-opening assessment cited irregular deduction claimed by the assessee, indicating a change of opinion, which is impermissible. The notice was deemed to be issued without jurisdiction and set aside along with the impugned order. 5. The petition was allowed, quashing the notice and order, citing lack of jurisdiction. The petitioner sought a Writ of Certiorari under Article 226 of the Constitution of India to set aside the notice and order. 6. The petition was disposed of with no order as to costs, concluding the legal proceedings in favor of the petitioner.
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