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TMI Blog2014 (4) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... "3. On the facts and circumstances of the case and in law, the impugned order under section 143(3) read with section 147 of the Act is beyond jurisdiction, barred by limitation, bad in law and void ab-initio as:." 4. At the time of hearing before us, it is stated by the learned counsel that the assessment year under consideration is 2004-05. The original assessment in this case was completed under Section 143(3) on 8th December, 2005. The reopening of assessment is made vide notice issued under Section 148 dated 28th March, 2011. Thus, reopening of assessment is beyond four years from the end of the relevant assessment year. He referred to the proviso to Section 147 of the Income-tax Act, 1961 to point out that if the original assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (ii) of clause (c) which provides where the income has been assessed at too low a rate, it would be a case of deemed concealment. The learned DR pointed out that in this case, admittedly, the income has been assessed at too low a rate which is duly recorded in the reasons for reopening of assessment. Therefore, as per Explanation (2) of Section 147, it is a clear case of escapement of income. He, therefore, submitted that the reopening of assessment should be sustained. 6. The learned counsel for the assessee, in the rejoinder, has stated that in original assessment, the entire income is assessed in the hands of the assessee on the basis of the finding of the Assessing Officer that the assessee is having a permanent establishment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year:" 8. Now, examining the facts of the assessee's case, there is no dispute that original assessment was completed under Section 143(3). The assessment year under consideration is 2004-05. Four years from the end of the relevant assessment year ended on 31st March, 2009. The Assessing Officer issued notice under Section 148 on 28th March, 2011 which was beyond four years from the end of the relevant assessment year. Therefore, as per above proviso, the Assessing Officer is not empowered to issue the notice unless there is fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removing the bar against taking action under section 148 based on the recorded reasons supplied to the petitioner as well as the consequent order were without jurisdiction as no action under section 147 could be taken beyond the four year period." 9. Let us test the facts of the assessee's case in the ratio of the above decision of Hon'ble Jurisdictional High Court. The reasons recorded for reopening of assessment are placed at page 22 of the assessee's paper book which read as under:- "Sub-reasons for reopening in the case of M/s Ericsson AB for AY 2004-05 Kindly refer to the above. The reasons for reopening in brief are as follows. "The income tax assessment of M/s Ericsson AB for the assessment year 2004-05 was completed after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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