TMI Blog2014 (7) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed all material facts now has any material brought to reveal non-disclosure - for the subsequent year, the notice for reopening was within the period of four years and yet on examination of the fact - it was a mere change of opinion on the part of the AO who previously framed assessment on scrutiny and the notice came to be quashed – the assumption of jurisdiction on the part of the AO itself is not sustainable – Decided in favour of Assessee. - SPECIAL CIVIL APPLICATION No. 2984 of 2014 - - - Dated:- 1-4-2014 - AKIL KURESHI AND SONIA GOKANI, JJ. For the Appellant : J.P. Shah and M.J. Shah. For the Respondent : Mrs. Mauna M. Bhatt. ORDER:- PER : Ms. Sonia Gokani Challenge is made by the petitioner to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng assessed to tax within the meaning of Section 147 of the I.T Act, 1961. Issue notice u/s. 148 of the I.T Act, 1961. The petitioner raised objections to such proceeding by filing a detailed reply on 11-9-2013. All objections raised have been disposed of by the Assessing Officer vide order dated 6-2-2013. The Assessing Officer by not accepting the objections, chose to dispose of the same and therefore, the present petition. Challenging such action of reopening, the petitioner seeks following prayers : (A) This Hon'ble Court be pleased to call for the records of the proceedings, look to them and be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing the impugned 148 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso (2) of Section 11 of the Act allows accumulation of funds for a specific purpose only and as per proviso (a) to Section 11 (1) of the Act, if a charitable trust spends 85% of the gross receipts, the trust can set apart 15% of its receipt as accumulation and if application of funds is less than 85%, for claiming exemption of the remaining amount, the Trust has been earmarked during the year as per Section 11(2) of the Act, before filing return of income and such accumulated money needs to be invested in the manner provided under sub-Section (5) of Section 11 of the Act. Even though a sum of Rs. 93,20,000/= [as per Form 10] has been set apart; the said amount is set-apart by way of expenditure of general objects of the trust, the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material on record, it emerges that the notice issued under Section 148 of the Act on 25th March 2013 is beyond the period of four years from the end of relevant assessment year. The requirement under the law is that the Assessing Officer who is authorized to make re-assessment must form a belief that the income chargeable to tax has escaped assessment for such assessment year on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment. All that is necessary therefore for the Assessing Officer to assume jurisdiction for initiating proceedings under Section 148 of the Act is to hold a belief that non-disclosure of material facts fully and truly led to escapemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the failure of the assessee to disclose truly and fully all material facts, therefore need not be satisfied. Nevertheless, if an issue had been examined by the Assessing Officer in the original assessment proceedings, any reopening on the basis of such issue without any additional material would be a mere change of opinion. As held by this Court in the case of Gujarat Power Corpn. Ltd. v. Asstt. CIT [2013] 350 ITR 266 (Guj.), even when the Assessing Officer in an order of assessment had accepted the assessee's stand and granted the claim as put forth, reopening on the same issue would not be permissible on the basis of selfsame material on record. Similar view is also taken by the Delhi High Court in the case of CIT v. Usha Internat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is allowed and disposed of accordingly . We notice that for the subsequent year, the notice for reopening was within the period of four years and yet on examination of the fact and yet on the very issue, this Court has found that it was a mere change of opinion on the part of the Assessing Officer, who previously framed assessment on scrutiny and accordingly, the impugned notice came to be quashed. The very issue has been raised in the reasons of reopening and this order where the additional requirement of law is to point out non disclosure on the part of the assessee. In absence of any such averments, we are of the firm opinion that assumption of jurisdiction on the part of the Assessing Officer itself is not sustainable. Petition, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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