TMI Blog2011 (6) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... p the cross objection first because in the event of assessee s grievance against initiation of reassessment proceedings being upheld, the issues raised in departmental appeal, which deals with the quantum of addition made in the course of assessment proceedings will be rendered academic and infructuous. 4. The grievances raised in the cross objection are as follows: 1. The notice u/s.148 of the Act dt.28.3.2008 for reopening of completed assessment under section 143(3) dt.19.12.2003 is bad in law as the assessee had declared full and true particulars of its income, therefore, notice of reopening is liable to be quashed. 2. The original assessment under section 143(3) dt.19.12.2003 was completed after proper application of mind on the issue of deduction u/s. 80 HHC of the Act even subsequent notice issued u/s.263 dated 17.3.2004 was dropped thereafter issue of notice u/s.148 dt.28.3.2008 based on retrospective amendment of section 80 HHC of the Act. 5. Briefly stated the material facts are like this. The assessee before us is a partnership firm engaged in the business of manufacturing and trading in fabrics during the relevant previous year. The assessee filed its retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relief to the assessee on merits in respect of additions made in sale of DEPB licence by following the ITAT (SB) in the case of Topman Exports, 318 ITR (AT) 87 (Mum)(SB. However, as the things stand now, the Special Bench decision of the Tribunal in the case of Topman Exports (supra) is reversed by Hon ble Jurisdictional High Court in the case of Kalpataru Colours and Chemicals, 328 ITR 451(Bom) and, therefore, the assessee has once again raised the grievance of reopening of assessment and is in cross objection before us. 7. We have heard the rival contentions and have perused the material on record as also the legal position. In the course of hearing before us, learned Departmental Representative has taken a preliminary objection on the ground that once the assessee does not raise the grievance of reopening of assessment before the CIT(A), it is not open to do so at this stage. He invites our attention to the categorical observations made by the CIT(A) to the effect that the grievance against reassessment proceedings was not pressed by the assessee. Learned counsel, on the other hand, submits that the grievance against reopening of assessment was not pressed for the reason th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in the case of Dharmik Exim Pvt Ltd v ACIT, in ITA No.232/M/2009 and others for A.Y. 2000-2001 order dated 9.9.2010, wherein, on similarly material facts, the co-ordinate Bench, inter alia, observed as follows: 15. What remains for consideration now is ground No. 5 to 7 raised by the assessee in its appeal. This relates to the validity of initiation of reassessment proceedings for A.Y. 2000-01. In this regard, we have M/s. Dharmik Exim Pvt. Ltd. already noticed that the notice u/s. 148 of the Act for this assessment year was issued and served on the assessee on 28.3.2007. The reassessment proceedings have been initiated beyond the period of four years from the end of assessment year. It is therefore necessary that the escapement of income should be because of failure on the part of the assessee to fully and truly disclose all material facts necessary for computation of its income. In this regard, we have also seen that the assessment for A.Y. 2000-01 was reopened consequent to amendment to the provisions of section 80HHC of the Act by the Taxation Laws (Amendment) Act, 2005 with retrospective effect. On this issue, we find that Hon'ble Gujarat High Court in the case of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot provide for taxability of the said income. The proceedings against the order under section 263 to bring the said income to tax were also dropped by the CIT. It is settled legal position that when the assessment is reopened beyond four years from the end of the relevant previous year and unless it cannot be established that the assessee has failed to disclose all the material facts necessary for the purpose of assessment, such reassessment proceedings cannot be upheld under law. That precisely is the case before us. In view of the above discussion and bearing in mind the entirety of the case, we uphold the grievance raised by the assessee in its cross objection and, accordingly allow the same. Once the reassessment proceedings itself are quashed, the additions made during the assessment proceedings so reopened seems to have any practical implication. The issue regarding validity of such additions is rendered academic and infructuous. Therefore, even though as learned counsel fairly agrees that the correctness of additions made during the course of such reassessment proceedings is now covered against the assessee by Jurisdictional High Court s judgement in the case of Kalapataru C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 147 are fulfilled . It is thus concluded that In such a case [i.e. when the reopening is within four years and the income tax return is processed under section 143(1)] as well, the touchstone to be applied is as to whether there was reason to believe that income had escaped assessment . It is thus clear that even when the original assessment is under section 143(1) and even when reassessment proceedings are initiated within a period of four years, it is still necessary that there should be reasons to believe that income had escaped assessment and such reasons are subject to judicial scrutiny. No doubt that at the stage of initiating reassessment proceedings, it is not necessary to establish that there has been an escapement of income, but essentially there have to be valid reasons to believe that income has escaped assessment and these reasons, on standalone basis, must be considered appropriate for arriving at the conclusion arrived at by the Officer recording the reasons. 13. In view of the above observations made by the co-ordinate Bench, in which, we are in considered agreement, the fact that assessment is completed under section 143(1), in the present case will not c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
