TMI Blog2011 (3) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not fall within the ambit of section 147 of the Act and as such the Assessing Officer lacks jurisdiction to reopen the assessment on the said ground - petition succeeds and is accordingly allowed - Special Civil Application No. 14449 of 2010 - - - Dated:- 24-3-2011 - Harsha Devani, B.M. Trivedi, JJ. Swati Soparkar for the Appellant K.M. Parikh for the Respondent JUDGEMENT Harsha Devani: By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 25.3.2010 issued by the respondent under section 148 of the Income Tax Act, 1961 (the Act) re-opening the petitioner's assessment for the assessment year 2003-2004. The petitioner is a Corporation constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2007 partly allowed the appeal. Thereafter, by the impugned notice, the assessment of the petitioner is sought to be re-opened for the assessment year 2003-04. Vide letter dated 28.4.2010, the petitioner filed its objections to the reasons recorded by the Assessing Officer and requested the respondent to drop the re-assessment proceedings. Thereafter, the respondent vide letter dated 14.10.2010 disposed of the objections and rejected the same in totality. Being aggrieved, the petitioner has filed the present petition challenging the above referred notice. Assailing the impugned notice under section 148 of the Act, Mr. S.N. Soparkar learned Senior Advocate appearing on behalf of the petitioner submitted that the assumption of jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e re-opened on two grounds. Insofar as the second ground pertaining to claim of depreciation is concerned, the said issue was subject matter of challenge by the petitioner before the Tribunal and was decided in favour of the petitioner. Attention was invited to the provisions of second proviso to section 147 of the Act to submit that in light of the said provision, once the income involved is subject matter of any appeal, reference or refund, it is not permissible for the Assessing Officer to re-assess or assess such income. It was submitted that in the circumstances, insofar as the second ground is concerned, the Assessing Officer lacks jurisdiction to re-open the assessment on the said ground. In conclusion, it was submitted that in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been made but the income chargeable to tax has been under assessed or such income has been made the subject matter of excessive relief or excessive loss or depreciation allowance or any other allowance under the Act are also deemed to be cases where income chargeable to tax has escaped assessment within the meaning of the Explanation 2(c) of section 147 of the Act. It was contended that it is not all the time required that there is failure on the part of the assessee to disclose fully and truly all the material facts necessary for his assessment. According to the learned counsel the assumption of jurisdiction by the Assessing Officer is valid and proper, and that, there is no warrant for any intervention by this Court. From the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the written back provision of Rs.47,40,43,904/- is the income of the assessee for the year under consideration, which has escaped assessment. As is apparent from the reasons recorded, the aforesaid satisfaction is based upon verification of the return of the petitioner company. In other words the said ground of reopening is based upon material disclosed by the petitioner. Insofar as the second ground is concerned, which relates claim of depreciation of Rs. 33,75,40,636/-, the said ground is based on the fact that in view of the introduction of Explanation 6(b) to section 43 of the Act by Finance Act, 2008, which has been made retrospectively effective from 1.4.2003, the assessee's claim requires to be restricted to Rs.12,42,38,986/-. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such, the impugned notice under section 148 of the Act, cannot be sustained. As regards the contention based upon Explanation 2(c) of section 147 of the Act, the same requires to be stated only to be rejected. The said Explanation only lays down the certain categories of cases which shall be deemed to be cases where income chargeable to tax has escaped assessment. The Explanation does not in any manner override the provisions of the first proviso to section 147 of the Act. Moreover, insofar as the second ground for reopening of assessment is concerned, it may be noted that the second proviso to section 147 of the Act expressly provides that the Assessing Officer may assess or reassess such income, other than the income involving m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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