TMI Blog2012 (7) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... ars leading to income chargeable to tax having escaped assessment The expenditure claimed as revenue expenditure in the computation of income remained unconsidered by the Assessing officer during the course of assessment proceedings which was capital in nature as the material was available on record at the time of first assessment, no conscious consideration of the material was made by the Assessing Officer and the mistake had been committed - thus impugned notice after the expiry of a period of four years cannot be warranted - In favour of assessee. - Special Civil Application No.12907 of 2003 - - - Dated:- 18-6-2012 - Akil Kureshi and Harsha Devani, JJ. For Appellant: Mr S N Divatia For Respondent: Mr K M Parikh JUDGEME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections, the respondent called upon the petitioner to file details called for by him. Apprehending that the assessment would be finalized without disposing of its objections, the petitioner has filed the present petition challenging the reopening of the assessment. 3. By an order dated 2.9.2003, this court while issuing notice had granted ad interim relief restraining the Assessing Officer from completing the process of reassessment. It was, however, observed that it would be open for the Assessing Officer to decide the objections raised by the petitioner vide his letter dated August 25, 2003 and a pass speaking order thereon, pursuant to which, the Assessing Officer, by an order dated 29.9.2003 rejected the objections filed by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice which seeks to reopen the assessment is based on mere change of opinion on the part of the successor Assessing Officer and as such, on this count also, the reopening of assessment is invalid. 5. On the other hand, Mr. K.M. Parikh, learned Standing Counsel for the respondent placed reiterated the stand adopted by the respondent in the affidavitinreply as well as in the order disposing of the objections and submitted that action taken by the Assessing Officer is just, legal and proper and does not warrant any interference by this court. 6. Before adverting to the merits of the case, the legal position in this regard may be noted. In view of the proviso to section 147 of the Act, in case where earlier an assessment has been framed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation upon the Assessing Officer to record reasons for reopening the assessment prior to issuing a notice under subsection( 1) thereof. It is a settled legal position that for the purpose of reopening the assessment beyond a period of four years from the end of the relevant assessment year, the reasons recorded should reflect that there is failure on the part of the assessee to disclose fully and truly all material facts. It may be therefore, necessary to refer to the reasons recorded, which read as under: The assessee company incurred expenses on various heads amounting to Rs.84,32,127/which has been claimed as revenue e expenditure. The expenditure was incurred before the commencement of production preoperative expenditure under cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no conscious consideration of the material was made by the Assessing Officer and the mistake had been committed. Thus it is the specific case of the Assessing Officer that though there was material on record, it was on account of a mistake on part of the then Assessing Officer that the allowance had been made. Thus, it is apparent that it is not even the case of the Assessing Officer that there is any default on the part of the petitioner as envisaged under the proviso to section 147 of the Act. Under the circumstances, the impugned notice under section 148(1) of the Act assuming jurisdiction under section 147 of the Act after the expiry of a period of four years from the end of the relevant assessment is clearly without authority of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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