TMI Blog2009 (12) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... e first issue is concerned the answer has to be in the negative. Since the petitioners were called upon to file objection to the notice under section 148 proposing to reopen the assessment on the ground a sum of Rs. 73,219 had "escaped income", the respondents cannot shift their stand and pass an order on the ground of "concealment of investment" as the petitioners had no opportunity to file objection regarding such "concealment".(2) as the second issue is concerned, the. I find from paragraph 1 of the order dated December 8, 2009 that respondent No. 1 had held that the petitioner did not produce report before the valuation cell. In my view, the said respondent had ignored the provisions contained in section 142A of the Act which postulates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No.1. The petitioners were represented at the time of proceedings. The case was discussed and heard. The submission is the assessee had disclosed fully and truly the material facts. In the assessment order dated December 29, 2008 under section 143(3) it was recorded that "On examination of the relevant documents no specific and mention-worthy discrepancies were found. Therefore, the return figure is accepted". Thereafter, respondent No.1 issued the notice dated July 16, 2009 under section 148 of the Act. The petitioners sought for the recorded reasons. On September 13, 2009 the recorded reasons were provided to the petitioner wherefrom I find that such notice was issued as a sum of Rs. 73,219 had "escaped income" for the said asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under section 148 proposing to reopen the assessment on the ground a sum of Rs. 73,219 had "escaped income", the respondents cannot shift their stand and pass an order on the ground of "concealment of investment" as the petitioners had no opportunity to file objection regarding such "concealment". 4. So far as the second issue is concerned, the question is whether the petitioner is required to produce valuation report before the valuation cell. I find from paragraph 1 of the order dated December 8, 2009 that respondent No. 1 had held that the petitioner did not produce report before the valuation cell. In my view, the said respondent had ignored the provisions contained in section 142A of the Act which postulates that the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated December 8, 2009 in the proceedings under section 147 had considered the written objection. The apex court in the case of Bhikhubhai Vithlabhai Patel v. State of Gujarat reported in [2008] 4 SCC 144 has held that " The term ' consider' means to think over ; it connotes that there should be active application of mind. In other words the term ' consider' postulates consideration of all the relevant aspects of the matter". Thus, "consideration" means taking into account and dealing with the material on record leading to a decision. However, in the instant case, the impugned order is silent how the objection on record was considered. Rather I find that while passing the order there was no consideration at all of the material pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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