TMI Blog2015 (4) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... very minor in nature. Therefore, the cash physically found was short of ₹ 5020/- for which it is explained that the same pertains to day to day and misc. expenses incurred on the day of survey. Secondly, the physical stock of 672 bags of potato was found. The explanation for the same is recorded. Thus, neither the survey report nor any other material indicates that any income chargeable to tax for the relevant assessment year has escaped assessment. The Assessing Officer, therefore, had nothing before him which would enable him to record his belief that any such escapement has taken place. In the circumstances, the reasons recorded and which pertain to all the assessment years prior and subsequent to the survey can hardly satisfy r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection to Respondent No.1 and Respondent No.2 quashing the reopening proceedings initiated under section 147 of the Act for Assessment Year 2010-2011. (b) to declare the notice issued under section 148(2) as invalid and illegal and not in conformity with law. 4. The facts and circumstances in which these reliefs are sought are that the Petitioner is a partnership firm registered under the Indian Partnership Act, 1932. It is registered as a commission agent of the Onion Potato Market under the Agricultural Produce Market Committee, Vashi, Navi Mumbai. The Petitioner firm is regularly assessed to income tax. The Petitioner filed a return of income for assessment year 2010-11 on 14th October, 2010. Along with this return, they have fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pening of the assessment by an application dated 23rd May, 2014. A copy of which is marked at page 82 of the paper book. 7. However, on 30th June, 2014 the Income Tax Officer sought certain information and production of documents from the Assessee. The Assessee replied to the same and pointed out that a copy of the 'reasons recorded' have not been supplied and reiterated the said demand. 8. Thereupon the copy of 'reasons recorded' were supplied by a communication dated 15th July, 2014. 9. It is claimed that these reasons are recorded at the time of issuance of notice under section 148. The same read as under: A survey action under section 133A of the Income Tax, Act, 1961 was carried out by the DDIT (Inv.), Unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and he has all opportunity in law to raise contentions challenging the reassessment and on merits. At this stage, this Court should not interfere in writ jurisdiction and merely because another view is possible. She submits that the Writ Petition be dismissed. 12. With the assistance of the learned counsel appearing for both sides, we have perused the Petition paper book and the relevant annexures. The precondition for issuing the notice under section 148 is the satisfaction and in terms of section 147 that an income chargeable to tax has escaped assessment and in the relevant assessment year. The survey report dated 2nd April, 2012 indicates that on the basis of authorisation dated 7/1/2011 which records that there is a group of Assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the power under section 147 should be exercised. That is to be exercised and in exceptional cases. It should not be exercised as a manner of routine and merely because some survey of this nature had taken place. At any point of time and when there was shortage of potato in the market, that such powers of survey were invoked. If nothing has been found therein which would indicate escapement of income and chargeable to tax, then, the basis for reopening ought not be such survey actions and the report. Something more was required in law for the Assessing Officer to exercise his powers. 14. As a result of the above discussion, we find that it is not possible to agree with Mrs. Bharucha that writ jurisdiction of this Court should not be exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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