TMI Blog2014 (6) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs u/s 148 as such an exercise would amount to giving a premium to an authority exercising quasi-judicial functions, to take benefit of its own wrong. – Relying upon CIT vs. ICICI Bank [2012 (7) TMI 521 - BOMBAY HIGH COURT] - reopening of assessment is bad in law – Decided in favour of Assessee. - ITA No. 7078/Mum/2013 - - - Dated:- 4-6-2014 - Shri D. Manmohan,JJ. For the Appellant : Shri Hariom Tulsyan For the Respondent : Shri B. P. K. Panda ORDER Per D. Manmohan, V.P. This appeal by the assessee company is directed against the order dated 05.09.2013 passed by the CIT(A)-20, Mumbai and it pertains to A.Y. 2008-09. 2. Assessment made under section 147 r.w.s. 143(3) of the Act and consequent determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . With regard to computation under section 115JB it was stated that there was book loss during the relevant financial year and hence computation under section 115JB is not applicable. Based on the above details the assessment was completed under section 143(3) of the Act by admitting the returned income. 4. Subsequent thereto the AO sought to reopen the assessment on the ground that as per section 44AF of the Act the assessee is supposed to declare profit of Rs.79,679/- being 5% of the total trading turnover whereas the assessee declared loss, which is contrary to the law and, therefore, issued a notice on 15.05.2012 and despite the objections raised by the assessee with regard to reopening of assessment the AO proceeded to complete the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served that the sine qua non for issue of a notice for reopening of assessment, even within a period of less than four years, is reason to believe that income has escaped assessment and such belief should be based on tangible material as otherwise the exercise of power to reopen would amount to review of assessment order, which is not permissible. The court further observed that an order purportedly passed without application of mind should not be permitted to be reopened and if such an order confers jurisdiction upon the AO to reopen the proceedings, without anything further, the same would amount to giving a premium to an authority exercising quasi-judicial function to take benefit of its own wrong. He thus strongly submitted that reopeni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l High Court. 9. I have carefully considered the rival submissions and perused the record. Admittedly, during the course of 143(3) proceedings the AO called for relevant details by issuing a questionnaire and the assessee furnished all the required details and upon perusing the details the AO having completed the assessment, in the absence of any fresh tangible material, in the light of the decision of the Hon'ble jurisdictional High Court cited supra, the AO may not be justified in reopening the assessment even within the period of four years. By respectfully following the aforecited judgements, I am of the view that reopening of assessment is bad in law and hold accordingly. 10. In the result, the appeal filed by the assessee co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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