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TMI Blog2016 (11) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... f suppression, the question of reopening the assessment does not arise, nor the extended period of limitation could be invoked. In this regard, the learned counsel referred to the first proviso under Section 147 of the Act. It was further submitted that the respondent, while communicating the reasons for reopening vide communication dated 09.09.2015, has simultaneously issued notice under Section 143(2) of the Act and the same is illegal. 4. With regard to the plea of limitation, it is submitted that though the impugned notice under Section 148 is dated 31.03.2015, the postal franking has been done on 01.04.2015 and it was booked on 02.04.2015, and received by the petitioner on 06.04.2015. On receipt of the notice, the petitioner submitted an objection on 06.05.2015, stating that the period of six years having lapsed on 31.03.2015, the impugned notice is not sustainable and therefore, requested the respondent to withdraw the reassessment proceedings. Without prejudice to the said submission, the petitioner sought for furnishing the reasons for reopening. The learned counsel for the petitioner submitted that in the counter affidavit filed by the respondent in paragraph 6, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee had failed to make full and true disclosure and in this regard, reference was made to the first proviso to Section 147, and it is submitted that in the instant case, there is no allegation that the petitioner had suppressed information or that there was no full and true disclosure. Further, it is submitted that while communicating the reasons to the petitioner, time was granted till 21.09.2015 for submitting the objections, but simultaneously, the respondent has issued notice under Section 143(2) of the Act, dated 09.09.2015 and the same is illegal. In support of his contentions, learned counsel placed reliance on the decision in the case of Fenner (India) Ltd., vs. DCIT reported in 241 ITR 672; Commissioner of Income Tax vs. Kelvinator of India Ltd reported in [2010] 320 ITR 561 (SC); ACIT vs. ICICI Securities Primary Dealership Ltd., reported in [2012] 348 ITR 299 (SC). 6. Mrs. Hema Muralikrishnan, learned Senior Panel counsel appearing for the respondent referring to the counter affidavit filed by the respondent, submitted that the impugned notice dated 31.03.2015, was despatched from the office of the respondent on the same day to the Department of Posts, as eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the reasons assigned in the impugned order dated 09.09.2015 and also pointed out as to the answers given by the persons, from whom statements have been recorded and submitted that the assessee failed to prove the genuinety of the transaction and therefore, there was full justification for issuance of notice for reopening the assessment. It is submitted that the reasons for reopening is not change of opinion, but for not providing details, as could be seen from the impugned order and it is evident from the admission of the officers of the petitioner, who have given evasive replies. Furthermore, it is submitted that this Court, exercising writ jurisdiction, cannot examine the sufficiency of reasons for reopening. Therefore, it is submitted that the petitioner may be directed to follow the procedure laid down in the case of GKN Driveshafts (India) Ltd., vs. Income tax Officer & Ors., (supra). 8. Heard Mr.G.Baskar learned counsel for Ms.S.Sriniranjani learned counsel for the petitioner and Mrs.Hema Muralikrishnan, learned Senior Panel counsel for the respondent and perused the materials placed on record. 9. The decision of the Hon'ble Supreme Court in the case of the GKN Drives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the documents/communications to be mailed to each person physically and the same is acknowledged in the Despatch Register maintained by the designated ranger/commissionerate. In this regard, reference was made to the register to show that despatch was effected on 31.03.2015 and to further confirm the same, reference is made to a letter given by the Department of Posts dated 25.09.2015. 12. On a careful reading of the decision in the case of Kanubhai M.Patel (HUF) (supra), it is clear that the same would not apply to the facts of the present case. In the said case, the undisputed fact was that the notices in question were sent for booking to the Speed Post centre only on 07.04.2010 and this was confirmed by the Department of Posts by their report, which was taken on record by the Court. Therefore, the decision in the case of Kanubhai M.Patel (HUF) (supra), is factually distinguishable and does not in any manner advance the case of the petitioner. 13. Coming back to the facts of the present case, there is nothing on record to dispute the business post arrangement between the Income Tax Department and the Department of Posts to show that the cover was despatched on 31.03.2015 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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