TMI Blog2010 (7) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of proceedings under section 147 of the Act stand vitiated and as such cannot be sustained - The impugned notices , issued under section 148 of the Income-tax Act, 1961, are hereby quashed and set aside. - 5846 and 5847 of 2010 - - - Dated:- 20-7-2010 - MEHTA D. A., DEVANI H. N. MS., JJ. JUDGMENT Ms. H. N. Devani J.- These two petitions have been filed with the following prayers : "(A) Issue a writ of certiorari and/or a writ of mandamus and/or any other writ, direction or order to quash and set aside the impugned notice dated March 29, 2010, under section 148 of the Income-tax Act, 1961 annexed hereto at annexure D along with preliminary order dated May 4, 2010, annexed hereto at annexure H for proceeding and comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho dismissed the appeal in so far as the ground relating to section 80-IA(4) of the Act is concerned. Against the said order the petitioner has preferred second appeal before the Income-tax Appellate Tribunal, which is still pending. 4. In the meanwhile, vide the impugned notice dated March 29, 2010, issued under section 148 of the Act, respondent No. 1 has sought to reopen the assessment for the assessment year 2003-04. In response to the said notice, the petitioner submitted its reply dated April 1, 2010 requesting that the return of income filed originally be treated as a return filed in response to the notice under section 148. The petitioner also requested for a copy of the reasons recorded for reopening the assessment under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 6. On the other hand, Mr. M. R. Bhatt, learned senior advocate appearing for the respondent has opposed the petition and reiterated what is stated in the affidavit-in-reply filed on behalf of the respondent. Dealing with the contention that there was no failure on the part of the petitioner in disclosing fully and truly all material facts relevant for its assessment, attention was invited to the reasons recorded for reopening the assessments under section 147, to submit that in the light of the amendment of section 80-IA vide Finance (No. 2) Act, 2009 with retrospective effect from April 1, 2000, it is deemed that the assessee had submitted untrue facts at the relevant point of time and as such the provisions of section 147 are clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment. Thus, for the purpose of invoking section 147 after the expiry of four years from the end of the relevant assessment year, the income chargeable to tax should have escaped assessment by reason of failure on the part of the assessee either (i) to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148, or (ii) to disclose fully and truly all material facts necessary for his assessment. In the facts of the present case, it is an undisputed position that there is no fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration. The respondent in its affidavit-in-reply also has not disputed the fact that there is no failure on the part of the petitioner to disclose fully and truly all material facts. Only by way of submission advanced before the court it is contended that in the light of the amendment of section 80-IA, it is deemed that the petitioner has failed to disclose the correct facts. As to whether or not there is any failure on the part of the assessee in disclosing fully and truly all material facts necessary for his assessment, is a matter of fact and there can be no deemed failure as is sought to be contended on behalf of the respondents. In the circumstances, in the absence of any failure on the part of the petitioner to disclose fully and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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