TMI Blog2007 (2) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the CIT(A) erred in annulling the assessment orders passed under s. 143(3) r/w s. 147 of the IT Act for asst. yrs. 1988-89 and 1989-90. 2. On the facts and in the circumstances of the case, the CIT(A) while annulling the assessment orders passed by the AO under s. 143(3) r/w s. 147 of the IT Act, erred in holding that the CIT has set aside the assessment under s. 263 as the additional income offered by the assessee in her petition dt. 22nd Jan., 1990 had not been taken into consideration in the assessment orders passed by the AO under s. 143(1) dt. 22nd Feb., 1990. As the additional income offered by the assessee for the relevant assessment years were of Rs. 5,000 only, no notice could validly be issued under s. 148 and the notice issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 on 28th Feb., 1989. The CIT(A) has noted in para 2 of his order that the assessee committed suicide on the date of search. 4. The order under s. 132(5) of the Act was passed on 29th May, 1989 which was challenged by the assessee vide application dt. 24th June, 1989 addressed to the CIT under s. 132(11) of the Act. In this application and in a separate petition filed before the CIT, the assessee's widow offered income of Rs. 13,35,500 for tax as under: ----------------------------- S.No. A.Y. Income offered (Rs) ----------------------------- 1 1985-86 60,000 2 1986-87 1,95,000 3 1987-88 78,500 4 1988-89 4,02,000 5 1989-90 6,00,000 ---------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under s. 148 on 1st Feb., 1999. The assessee questioned the validity of this notice vide letter dt. 31st Jan., 2000. In the assessment order passed under s. 147 on 27th Dec., 2000, the total income was assessed at Rs. 6,62,870. In the first appeal, the CIT(A) annulled the assessment and his order has been challenged by the Department in the present appeal. 9. We have considered the rival submissions in the light of material on record and the precedent cited. The CIT(A) has, inter alia, noted in para 5 of his order that the notice under s. 148 dt. 1st Feb., 1999 for asst. yr 1988-89 was issued after more than four years, that the assessment could not be reopened unless some income chargeable to tax had escaped assessment by reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losure of material facts need not be the basis for initiating the proceedings and they can be commenced if the AO has reason to believe that the income has escaped assessment notwithstanding that there was full disclosure of material facts on record. The assessee in such cases cannot defend the initiation of action on the ground that the facts were already placed on record and that the AO must have or ought to have considered them. The power to make assessment or reassessment, where the initiation has been made within four years of the end of the relevant assessment year, would be attracted even in cases where there has been a complete disclosure of all relevant facts upon which a correct assessment might have been based in the first instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e foregoing proviso." 15. It is seen that the proviso to s. 147(1) has in a way followed the criteria laid down in the pre-1989 s. 147(a) as it stood upto 31st March, 1989. 16. In order to be able to initiate the proceedings under the post-1989 s. 147, after the expiry of four years from the end of the relevant assessment year, the onus will be on the AO to establish that the assessee had failed to disclose fully and truly certain facts, material to the assessment of income which had escaped assessment (C P 5131, 79/582, 41/597, 103/599, 104/524, 104/214, 107/79, 111/936, 111/934). In other words, the cases sought to be brought within the proviso to s. 147 should strictly fall within that provision and it is for the Department to show t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts disclosed or on fresh facts gathered as a result of further enquiry will not justify action under s. 147, if the fresh facts are not primary facts which existed at the time of assessment and which the assessee was under duty to disclose. 21. It is seen that in the present case, the AO had noted in para 10 of his impugned order as under: "10. In view of the directions contained in the order under s. 263, the assessment was reopened and after hearing the assessee and considering the information available on record/in the books, the assessment was finalized under s. 143(3) r/w s. 263 on 29th Dec., 1992, determining total income of Rs. 6,62,870. The order of the CIT under s. 263 was appealed against before Tribunal, Pune. The Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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