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TMI Blog2013 (2) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Tribunal has not decided the question of jurisdiction at all. There was no discussion or reason. The question of jurisdiction admittedly goes to the very root of the matter. We feel, as has rightly been pointed out by Mr Khaitan, that this question has to be decided first. After deciding the said question first, if the learned Tribunal feels that the matter may be decided on merit, the Tribunal can do so. We have examined the aspect of merit, and noticed that the relevant materials placed before the learned Tribunal which were not at all considered or discussed. Therefore, on merits also, this requires reconsideration. Accordingly, we set aside the impugned judgment and order of the learned Tribunal, and remand the matter for fresh hearing on the question of jurisdiction first, with reasons. If the question of jurisdiction is decided against the assessee, then the Tribunal will decide the matter on merits taking into consideration all the material placed before it earlier as well as material which might be placed afresh before the Tribunal. Let the hearing on remand be completed within a period of three months from the date of communication of this order" 2. The matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the professional income as per tax deduction at source certificates is at variance, and it, therefore, requires verification to find out whether any taxable income has escaped assessment. There is a categorical mention in the reasons recorded for reopening the assessment that "the discrepancy may be verified". The short question we are required to adjudicate is whether, on these undisputed material facts, the reassessment proceedings so initiated can be said to be sustainable in law. 8. We have heard the rival contentions, perused the material on record and duly considered factual matrix of the case as also the applicable legal position. 9. We have taken due note of the fact that the original assessment proceedings were completed under section 143(1) of the Act and that the reassessment proceedings are initiated within four years but that does not, as is the settled legal position, does not imply, as has been indirectly suggested by the learned Departmental Representative, that assessment proceedings can be revisited even in the absence of legally sustainable reasons for formation of prima facie belief that income has escaped assessment. In other words, irrespective of whether o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for invoking section 147 i.e. reasons for forming opinion that income has escaped the assessment. Elaborating upon this aspect of the matter, Hon'ble Shri R V Easwar, the then Senior Vice-President of this Tribunal, has, in the Third Member decision in the case of Telco Dadajee Shackjee Ltd. v. Dy. CIT [IT Appeal No. 4613/Mum/2005, dated 12-5-2010] in his inimitable words, observed as follows: ".....it needs to be remembered that section 147 applies both to section 143(1) as well as section 143(3), and, therefore, except to the extent that the reassessment notice under section 143(1) cannot be challenged on the ground of a mere change of opinion, still it is open to the assessee to challenge the notice on the ground that there is no reason to believe that income chargeable to tax has escaped assessment. The reason to believe must have a live link to formation of belief that income chargeable to tax had escaped assessment when the return was processed and accepted under section 143(1). To hold that in every case where a return was processed and accepted under section 143(1), the Assessing Officer will be free to reopen the same under section 148 even in the absence of a live link ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicate that income has escaped assessment. All that the Assessing Officer records is the fact that these two figures are different, but then this fact does not necessarily lead to the inference that the income has escaped assessment, and, therefore, the Assessing Officer himself refers to the need to verify the matter by observing that "the discrepancy may be verified". So far so good, but then the fallacy creeps in when the Assessing Officer concludes that, for the said reason, "this is a fit case for reopening the assessment". As Hon'ble Bombay High Court has observed, in the case of Hindustan Lever Ltd. (supra), the reasons should provide link between evidence and the conclusion. The evidence is that the figures of professional receipts as per TDS certificates and as shown in the profit and loss account vary, but then this does not lead to the conclusion that the income has escaped assessment. As a matter of fact, as we will see in paragraph 15 of this order a little later, on the same date and vide identical reasons recorded, the Assessing Officer has also reopened the assessment for subsequent assessment year as well, in which professional income as per profit and loss acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 54/Kol/2012. 14. This appeal is directed against the order dated 12th January, 2009 passed by the learned Commissioner (Appeals) in the matter of assessment under section 143(3) r.w.s. 147 of the Income-tax Act, 1961, for the assessment year 2005-06. Grievance of the assessee, on the question of jurisdiction, is as follows: That in the absence of any valid reasons to believe that income of the assessee has escaped assessment, within meanings of Section 147 of the Income-tax Act, 1961, the notice issued by the Assessing Officer under section 148 was without jurisdiction, and, therefore, the impugned assessment order passed on 15th December, 2008, in pursuance to such notice, is liable to be annulled. 15. The relevant facts of the case are materially similar with the facts of the assessment year 2005-06 which we have dealt with above. The assessment in this case also was completed under section 143(1) of the Act, but subsequently, the assessment was reopened for the following reasons recorded by the Assessing Officer-copies placed before us at pages 23 and 24 of the paper-book 12.2.2008 The assessee (has) shown professional income in the P & L account Rs. 28,99,380 but on veri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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