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2016 (5) TMI 477 - CALCUTTA HIGH COURT

2016 (5) TMI 477 - CALCUTTA HIGH COURT - TMI - Reopening of assessment - failure to disclosure fully and truly all relevant facts for the allowance of claim under Section 35AB - Held that:- The petitioner had entered into an agreement with a foreign supplier for the purpose of acquiring technical knowhow. This agreement was disclosed to the Assessing Officer. The petitioner had sought permission from the Assessing Officer to remit the technical knowhow fees to the foreign supplier. This fact wou .....

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e assessment year was assessed on scrutiny under Section 143(3) of the Income Tax Act, 1961. The Assessing Officer was silent on account of the deductions claimed. He had allowed the amount of deductions claimed on such head in the order of assessment under Section 143[3} of the Income Tax Act, 1956.

The petitioner is not guilty of disclosing fully and truly all materials facts necessary for its assessment for the relevant assessment year. - Decided in favour of assessee - WP No. 1280 .....

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ncome Tax Act being dated May 31, 2001. Learned Senior Advocate for the petitioner has submitted that the concerned assessment year is 1994-1995. The assessee was issued a notice for scrutiny for such assessment year on March 4, 1997. The petitioner had replied thereto by writing dated March 11, 1997. An order under Section 143[3] in respect of such assessment year was passed on March 31, 1997. Being aggrieved by certain portions of such assessment order, the petitioner had preferred an appeal t .....

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6 to the Assessing Officer seeking no objection certificate permitting remittance at the earliest. The Assessing Officer had permitted the remittances as would appear from a writing dated December 19, 1996. He has referred to the order of assessment under Section 143[3] of the Income Tax Act, 1961. He has submitted that the entire materials relating to remittance for the technical knowhow were before the Assessing Officer. In the event the Assessing Officer has made a mistake in calculation, the .....

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ers) as well as [2013] 350ITR 131 (Guj) (Ganesh Housing Corporation Ltd.-Versus-Deputy Commissioner of Income Tax & Another)in support of his contention that since the conditions precedent for assumption jurisdiction under Section 147 is absent, the impugned order, as also the notice, should be quashed. Learned Advocate for the Department has submitted that, the Assessing Officer was correct in issuing the impugned order. The reasons necessitating the Assessing Officer to pass the impugned o .....

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rtment in the affidavit in opposition. The Assessing Officer apparently had passed an order dated May 22, 2001 finding it necessary to invoke the provisions of Sections 147 and 148 of the Income Tax Act, 1961. It appears from the order dated May 22, 2001 passed by the Assessing Officer that the Assessing Officer claims that the deduction allowable on acquisition of technical knowhow was excessively made by the petitioner and the petitioner should make good difference. For the assessment year 199 .....

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or the relevant year. In Gemini Leather Stores (supra) the issue as to when the Assessing Officer can assume jurisdiction under Section 147 of the Income Tax Act, 1961 has been considered. It has laid down as follows:- The law laid down in Calcutta Discount Co. s case has been restated in several subsequent decisions of this Court: Commissioner of Income Tax V. Hemchandra Kar, Commissioner of Income Tax v. Bhanji Lavji and Commissioner of Income Tax v. Burlop Dealers Ltd, to name only a few. In .....

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a case of oversight, and it cannot be said that the income chargeable to tax for the relevant assessment year had escaped assessment by reason of the omission or failure on the part of the assessee to disclose fully and truly all materials facts. The Income Tax Officer had all the material facts before him when he made the original assessment. He cannot now take recourse to Section 147(a) to remedy the error resulting from his own oversight. Ganesh Housing Corporation Ltd (supra) has expressed .....

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