TMI Blog2013 (3) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... e is restored to the Tribunal for fresh consideration - decided n favor of revenue. - TAX APPEAL No. 1057 of 2010 - - - Dated:- 25-1-2012 - MR. AKIL KURESHI AND MS SONIA GOKANI JJ. Appearance: MRS MAUNA M BHATT for Appellant MR SAURABH N SOPARKAR Sr Advocate with Mrs SWATI SOPARKAR for Opponent ORAL ORDER (Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Revenue is in appeal against the judgment of the Tribunal dated 17th September 2008. On 17th August 2011, we had issued notice for final disposal returnable on 14th September 2011, which read thus :" Counsel for the revenue submitted that the Assessing Officer reopened the assessment of course beyond four years but within six years from the end of relevant assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond four years if the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year ? Counsel for the Revenue pointed out that the order of Assessing Officer was challenged by the respondent assessee before the CIT [A]. CIT [A] ruled in favour of the Revenue. All the contentions of the assessee regarding validity of reopening of the assessment were considered by the CIT [A] but negatived. In particular, with respect to failure on the part of the assessee to disclose fully and truly all material facts, CIT [A] made following observations:" 4. Fourth argument in A.Y 2001-02 was that there is no failure on the part of appellant to disclose fully and truly all material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns recorded that appellant did not disclose material facts relating to claim of deduction u/s. 80HHC. Such mention is not required in the notice issued u/s. 148. Other decisions referred by the appellant are not relevant to the facts of the present case wherein the reopening was made by fulfilling all the conditions precedent thereto namely, the escapement of income is clearly mentioned, nondisclosure of fact relating to claim of deduction was also mentioned and the reopening was within time allowed under statute with necessary sanction. Therefore I found the reopening in both the years valid and hence this ground is rejected in both the years. Counsel for the Revenue further pointed out that when the matter was carried in appeal befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts. The assessment which was completed after scrutiny, therefore, could not have been reopened beyond the period of four years. Having thus heard learned counsel for the parties, what emerges on record is that for A.Y 2001-02, the Assessing Officer issued notice on 8th September 2006 seeking to reopen such assessment on the grounds mentioned in the reasons recorded. Upon completion of the assessment, pursuant to such reopening, the assessee approached CIT [A] raising several grounds; including with respect to validity of notice for reopening of assessment. CIT [A], as already noted, discussed all objections of the assessee to the validity of the reopening and in particular with respect to reopening of the assessment beyond the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion by examining the material on record, and thereafter declared the notice barred by limitation, the issue would have stood on a different footing. However, in the present case, the Tribunal without reversing the conclusion of the CIT [A] that there was failure on the part of the assessee to disclose truly and fully all material facts, declared the notice for reopening which was issued beyond the period of four years of the end of the relevant AY but before six years, as barred by limitation. Since the Tribunal gave no finding on this important controversy, we are inclined to remand the proceedings before the Tribunal for fresh consideration and disposal in accordance with law. In the result, impugned order of the Tribunal in so far ..... X X X X Extracts X X X X X X X X Extracts X X X X
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