TMI Blog2011 (6) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... and truly all material facts necessary for assessment and having observed that there is such a failure to proceed under Section 147 - There is a well known difference between a wrong claim made by an assessee after disclosing all the true and material facts and a wrong claim made by the assessee by withholding the material facts fully and truly - the Writ Petition is allowed - Writ Petition No. 71 of 2005 - - - Dated:- 9-6-2011 - S.A. Bobde and F.M. Reis, JJ A.N.S. Nadkarni, Sr. Adv. with S.G. Bhobe, V. Frank and D. Lawande, Advs. for the Petitioner Asha Dessai, Adv. for the Respondent Nos. JUDGMENT S.A. Bobde, J 1. The Petitioner, an assessee under the Income Tax Act, 1961(Act, for short) has challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned(hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year): Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return; (c) where an assessment has been made, but: (i) income chargeable to tax has been underassessed; or (ii) such income has been assessed at too low a rate; or (iii) such income has been made the subject of excessive relief under this Act; or (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed." 4. According to the learned Counsel, the Revenue is entitled to issue such a notice if the Assessing Officer has reason to believe that income chargeable to tax has escaped assessment by reason of the failure on the part of the assessee (a) to make a return under section 139 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent so made is the result of a failure of the assessee to fully and truly disclose all material facts necessary for assessment. Indeed, where the assessee has fully disclosed all the material facts, it is not open for the Assessing Officer to re-open the assessment on the ground that there is a mistake in assessment. Moreover, it is necessary for the Assessing Officer to first observe whether there is a failure to disclose fully and truly all material facts necessary for assessment and having observed that there is such a failure to proceed under Section 147. It must follow that where the Assessing Officer does not record such a failure he would not be entitled to proceed under Section 147. As observed earlier, the Assessing Officer has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Writ Petition is allowed in terms of prayer clauses (a) and (c). 6. Rule made absolute in terms of prayer clauses (a) and (c) which read as follows:- (a) That this Hon'ble Court may be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, Order or Direction under Article 226 of the Constitution of India,calling for the records of its case insofar as they relate to the impugned notice dated 18th March, 2004, the impugned satisfaction of Respondent No.2 under Section 151 of the Act, if any, and the impugned reassessment proceedings of the Petitioner for assessment year 1997-98 and after going through the same and examining the legality and validity thereof, to quash and cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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