TMI Blog2012 (7) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... f course such order of the Tribunal was reversed by the High Court - as in the reasons recorded it is not even an allegation that any income chargeable to tax escaped assessment on account of failure on the part of the assessee to disclose truly and fully all material facts necessary for such assessment - in favour of assessee. - Special Civil Application No.14219 of 2008 - - - Dated:- 2-7-2012 - Akil Kureshi and Harsha Devani, JJ. For Appellants: Mr S N Soparkar, Sr. Adv. Mrs Swati Soparkar Mr B S Soparkar For Respondents: Mr M R Bhatt, Sr. Adv. Mrs Mauna M Bhatt JUDGEMENT Per: Akil Kureshi: 1. The petitioner has challenged a notice dated 31.3.2008 as at Annexure A to the petition, by which the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f MAT credit. Aggrieved, the department appealed before the Hon'ble ITAT against the order u/s 154, who vide order No.125/AHD/2004 dated 22.3.2007 confirmed the decision of the Ld. CIT(A). Subsequently, the case was reassessed u/s 147, and following the decision of Hon'ble ITAT, benefit of MAT credit was given to the assessee before calculation of interest u/s 234B. This order u/s 147 was audited by the Revenue Audit Party wherein it was objected that this MAT credit benefit should not have been given to the assessee on the ground that the amendment of section 234B in favour of the assessee comes into effect only from 1.4.2007. Giving benefit of Netting of Interest to the assessee while calculation of deduction u/s 80HHC : For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rkar, taking us through the reasons recorded by the Assessing Officer, contended that there was no failure on the part of the assessee to disclose truly and fully all material facts which occasioned escapement of income chargeable to tax. In absence of this requirement being fulfilled, the impugned notice was wholly without jurisdiction. 7. Counsel pointed out that the first issue with respect to giving benefit of MAT credit before calculation of interest under section 234B of the Act, was not only discussed in the original assessment, the same was concluded in favour of the petitioner for the same assessment year by virtue of a decision of the Tribunal. It was, therefore, not open to the Assessing Officer to reopen the same question, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatt for the Department relied on reasons recorded by the Assessing Officer and opposed the petition. 13. Having thus heard the learned counsel for the parties and having perused the documents on record, we are clearly of the opinion that the notice for reopening the assessment is wholly without jurisdiction. This is so for several reasons. Firstly in the reasons recorded, it is not even an allegation that any income chargeable to tax escaped assessment on account of failure on the part of the assessee to disclose truly and fully all material facts necessary for such assessment. In absence of any such ground, reopening of assessment beyond a period of four years from the end of relevant assessment year would be wholly impermissible. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s escaped assessment, cannot form the basis for reopening of the assessment. 18. With respect to the second issue also, the same was discussed by the Assessing Officer in the original assessment. The decision of the Assessing Officer was adverse to the petitioner. The petitioner carried the matter in appeal and the CIT (Appeals) allowed the assessee's appeal on this point. Here also, without any further development, the Assessing Officer could not have taken a view different form that of the CIT (Appeals). This ground also must fail on both the counts, namely, no failure on the part of the assessee to disclose material particulars, and the issue having been decided in favour of the assessee. 19. Looking from any angle, the notice for re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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