TMI Blog2008 (10) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Mrs. Mauna M. Bhatt for the respondent. JUDGMENT The judgment of the court was delivered by 1. SMT. ABHILASHA KUMARI J. - Rule. Learned counsel for the respondent is directed to waive service of notice of rule for the respondent. With the consent of the learned counsel for the respective parties, the petition is heard and finally decided today. 2. By filing this petition under article 226 of the Constitution of India, the petitioner-assessee has challenged the notice dated March 31, 2008, issued under section 148 of the Income-tax Act, 1961 ("the Act" for short) in respect of the assessment year 2001-02 by the Assessing Officer, on the ground that the same is illegal, without jurisdiction and beyond the period of limitation, as prescribed under the Act. 3. Briefly stated, the facts of the case are that the petitioner, which is a limited company, filed its original return of income on October 24, 2001, declaring therein, a total income of Rs. 18,26,66,410. On February 23, 2004, the assessment was framed under section 143(3) of the Act. On March 31, 2008, the Assessing Officer issued the impugned notice under section 148 of the Act for reopening the assessment for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that, in the present case, all the primary facts have been fully disclosed in the return of income filed by the petitioner and that the working of long-term capital gain of Rs. 1,09,47,296 was attached with the return of income, as enclosure B, in which there is a detailed summary of short-term and long-term capital gains and item-wise computation, running into several pages. Under the circumstances, it is not open for the respondent to issue the impugned notice beyond the period of four years from the end of the relevant assessment year and, therefore, the same deserves to be quashed and set aside, as being without jurisdiction. The learned senior counsel has submitted that at the time of assessment, a detailed inquiry was made by the Assessing Officer and the relevant documents and submissions, which were placed on record by the peti boner, were considered and thus all the primary facts having been placed for consideration on the record, the impugned notice is patently illegal and the petition deserves to be allowed. In supportof these submissions, reli ance has been placed upon Krishna Metal Industries v. H. M. Alogotar [1997] 225 ITR 853 (Guj) and Calcutta Discount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year 2005-06 was held to be income assessable under the head "Profits and gains of business or profession", the same analogy would apply retrospectively to the relevant assessment year 2001-02, and the amount of Rs. 1,09,47,296 shown as long-term capital gain under the head "Capital gains", should be assessed under the head "Profits and gains of business or profession", thereby bringing it to the net of the higher slab of tax. On the basis of the above inferences, the respondent has come to the following conclusion: "In view of the facts of the case as above, I have reason to believe that income chargeable to tax under the head profits and gains of the business or profession has escaped assessment." 8. It is relevant to notice that the communication dated April 28, 2008, nowhere states that the petitioner-assessee has failed to disclose fully and truly, all material facts necessary for assessment for the relevant assessment year. There is not a whisper to this effect in the letter dated April 28, 2008, and this is not one of the reasons mentioned for reopening the assessment for the relevant assessment year. On the contrary, the reasons recorded say this income h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to be reopened in the absence of fulfilment of the pre-requisite conditions, as contained in the proviso to section 147 of the Act. 18. The objections raised by the petitioner have been rejected by order dated August 28, 2008. A perusal of the said order discloses that the respondent has relied upon Explanation 1 to section 147, stating that the assessee has not disclosed details and other related facts as to the volume of transaction, buying and selling of shares/securities, which would enable the Assessing Officer to ascertain and determine the real nature and character of the transactions and in the absence of such primary details, which should have been furnished by the petitioner-assessee, it cannot be said that there is a full and true disclosure of all material particulars relating to the assessment year under consideration. This, clearly, is nothing but an attempt to supplement and improve upon the reasons recorded as reproduced in the letter dated April 28, 2008, by adding something which is not recorded initially. 11. We find from the material on record, that the petitioner has made a full disclosure of material facts in the return of income filed by him for the r ..... 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