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TMI Blog2016 (8) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... came to be selected for scrutiny and after scrutiny under section 143(3) of the Act, assessment order came to be passed on 27.12.2007. By that time, on 20.2.2006, notice was issued under section 143(2) of the Act and in compliance thereto and in response to the questionnaire which was furnished on 23.10.2007, the petitioner has replied again and furnished all necessary details by communication dated 28.11.2007. In addition thereto, the petitioner has also submitted a detailed reply on 5.7.2007 and in this regard during the course of hearing also, the petitioner has produced all necessary documents and books. It was then after considering several materials which was adduced, scrutiny assessment came to be passed. From the record, it emerges that against that scrutiny assessment, the petitioner has preferred an appeal before CIT(Appeals) and later on the department had filed appeal before Tribunal. The said appeal came to be dismissed on 22.10.2010 and pursuant thereto, the assessment which has been made on 27.12.2007 came to be final. It is the case of the petitioner that despite aforesaid circumstances, though issue has been deliberated and has been considered at detailed length, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that reopening is on account of some concealment of material and therefore, requested the Court not to allow such exercise to be taken on part of the respondent authority. 3. As against this, learned counsel Mrs. Mauna Bhatt for the revenue submitted that while issuing notice under section 148 of the Act, proper reasons have been assigned as to why reopening should be allowed. She submitted that may be it is not the case of true and full disclosure at the time of assessment by the assessee but at the same time, she submitted that there is a case of omissions on part of the assessee not to disclose that aspect and therefore, justified that notice under section 148 of the Act is just and proper. She has drawn attention of the Court to page 25 form 2D in which the fact about brokerage and commission is not reflected and that thereby she submitted that there is a clear omission on part of the assessee which warrants authority to exercise powers of reopening. It was also submitted that there is no straight-jacket formula that even if issue of reopening is given up after a period of four years, omission part can never be looked into. She further submitted that this is the material whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already mentioned which is inadmissible under section 40A of the Act. Similarly, on page 41 in Annexure "A", a specific figure has also been mentioned in column items 10 and 11 which is reflecting the figure of commission received and commission paid and on the basis of that, learned counsel for the petitioner submitted that material has been truly and fully disclosed before the authority and in absence of any such contingency, it is not open for the respondent authority to reopen the assessment after a period of four years. Even on the basis of material which was placed by the petitioner during the course of hearing, statements which have been produced before the authority which are part of the petition compilation on page 62, again learned counsel for the petitioner has drawn attention about figures which have been reflected pertaining to brokerage and commission and submitted that all the details have been specifically dealt with by the authority and therefore, it is not open on part of the respondent authority to reopen the assessment. From the reasons which are recorded as stated above, a specific reference about the fact that the authority has scanned the entire record of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad Koch Technic Pvt. Ltd. Vs Assistant Commissioner of Income (OSD)-Tax in Special Civil Application No.16074 of 2011 dated 2.12.2011 wherein also, the Court has specifically opined that in absence of any live link that the reasons recorded and the belief formed issue of notice for re-opening was treated as wholly invalid. Para-22 of the said judgment reads as under: "22. In the reasons recorded, there is not even a prima facie belief or disclosure that on what basis, the Assessing Officer has formed his reason to believe that such payment to the foreign supplied attracted tax in India. In absence of any live link with the reasons recorded and the belief formed, we are of the opinion that the notice was wholly invalid." Therefore, we are of the opinion that the decisions cited by the learned counsel for the petitioner clinch the issue. Therefore, we are of the opinion exercise undertaken by the respondent authority of issuing notice under section 148 of the Act is not just and proper and is without jurisdiction and therefore, the same requires to be quashed and set aside. 8. Learned counsel for the revenue has relied on the decision reported in the case of 346 ITR 228 and has st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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