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2022 (1) TMI 793 - BOMBAY HIGH COURTReopening of assessment u/s 147 - eligibility of reason to believe - change of opinion to commence proceedings for re-assessment - claim of expenses made without establishing the nature of expenses with respect to work done and documentary evidences. ad there is no brought forward losses whereas assessee claimed set off of brought forward losses - HELD THAT:- As regards point (a) and point (b), petitioner had received notice dated 15th October 2015 under Section 142(1). Item 9 in the Annexure to the notice calls upon petitioner to furnish break-up of head-wise expenses where amount paid was above ₹ 5 lakhs in the format mentioned therein and item 11 calls upon petitioner to furnish details of brought forward losses and assessed losses, if any, along with proof, i.e., assessment orders / order giving effect to CIT(A)’s order / ITAT or High Court order. Petitioner replied to this notice by a communication dated 19th November 2015 addressed through petitioner’s Chartered Accountants. We have perused the said document and petitioner has provided all the details as sought for. In fact these figures also find a mention in the statement of profit and loss filed by petitioner. It is true that these points have not been discussed in the assessment order. But as held by the Division Bench of this Court in Aroni Commercials Limited. [2014 (2) TMI 659 - BOMBAY HIGH COURT] once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment.. It is not necessary that an assessment order should contain reference and / or discussion to disclose its satisfaction in respect of the query raised. Unexplained dividend receipts - As in the profit and loss account, break-up of other income has been provided. It indicates a total income of ₹ 15,11,01,889/- of which ₹ 13,25,26,684/- relates to dividend from foreign companies. The assessment order certainly includes income from other sources of ₹ 15,11,01,889/-. Therefore, even this issue has been a subject of consideration of the Assessing Officer while completing the assessment. Objection against reopening - Petitioner made attempt on multiple occasions to upload its objections to the notice for re-opening of assessment proceedings but on account of the portal of income tax not working properly (technical issues and glitches), it could not upload / record its objections. Thereafter petitioner finally managed to file its objections dated 14th September 2021 and an order rejecting the objections was passed on 17th September 2021, which is impugned in the Petition. This Petition has been declared on 22nd September 2021 and lodged on 23rd September 2021. Therefore, we cannot say that in the case at hand, petitioner had participated in the assessment proceedings. We have to, therefore, reject the submissions of Shri. Walve that petitioner having participated in the assessment proceedings, would disentitle the petitioner to the extra-ordinary reliefs under Article 226 of the Constitution of India. The notice under Section 148 has been issued purely by way of change of opinion relying on the same set of primary facts which had been submitted by petitioner during the original assessment proceedings. In our view, the usage of expression in the reasons “there has been escapement of income by reason of failure on the part of the assessee to disclose fully and truly all material facts” is clearly made as an attempt to take the case out of the restrictions imposed by proviso to Section 147 of the Act.
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