TMI Blog2015 (12) TMI 1674X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer to issue notice just before the expiry of the four years, that too, when the entire material was before the Assessing Officer and all those facts were disclosed before the Assessing Officer i.e. on 3.10.2003 itself and there is no explanation on the part of the Assessing Officer as to why it take approximately four years to issue notice u/s. 148 of the Act and more particularly when there was no new tangible material in formation of belief. We have found upon the entirety of the facts in the present case that there was a gross ‘omission’ or ‘lapse’ on the part of the Assessing Officer who was having material before him since 3.10.2003 but just before the expiry of four years, all of sudden notice u/s. 148 regarding reopening of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wholly untenable in law. 6) The appellant may please be permitted to raise any additional or alternative ground on or before the hearing of appeal. Following additional grounds were also urged before us :- 1) Notice issued u/s. 148 of the I.T. Act, 1961 is ab-initio void in as much as same has been issued without there being any tangible material available on record suggesting escapement of income. Consequently, the assessment order passed is also void ab-initio. 2) Assessment order passed by the Assessing Officer is ab-initio in as much as basic conditions laid down in section 147 of the I.T. Act, 1961 having not been satisfied, issue of notice u/s 148 of the I.T. Act and consequently assessment order passed are void ab- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer. As per the assessee notice u/s. 148 of the Act was issued merely on the basis of the audit report and on the basis of change of opinion. The learned AR further argued that no notice u/s. 143(2) of the Act was issue and served after filing of return of income for the subject assessment year and before issued a notice u/s. 148, the Assessing Officer was precluded from having recourse to section 148 of the Act. Learned AR relied upon the decision in the case of Mitsui Marubeni Corporation Vs. DDIT (110 ITD 535)(Del). Lastly, it was submitted that the order of learned CIT(A) regarding confirming the order of the Assessing Officer in this regard may be set aside. 4. Learned Departmental Representative relied upon the orders passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very material. The basic condition laid down in section 147 is that the Assessing Officer has reasons to believe that any income chargeable to tax has escaped assessment for any assessment year and therefore before deciding the controversy it is material to construe the meaning of escaping . It has been held in various Judgments that the word escaping has different meaning within that of omission , therefore both the words i.e. escaping and omission have got different meanings and as far as provisions of Income Tax Act is concerned the word particularly mentioned in section 147 is escaping and in order to bring the assessee s case within the ambit of the word escaping , the onus is strictly upon the Assessing Officer to prove tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion that there was escapement of income from assessment. Reasons must have a link with the formation of the belief. This is a separate proposition of law which has been laid down by Hon'ble Supreme Court in the case of CIT Vs. Kelvinator of India Ltd. (320 ITR 561) and the principles laid down by Hon'ble Supreme Court are categorized condition and requirement under which an assessment can be reopened. Now what we have found upon the entirety of the facts in the present case that there was a gross omission or lapse on the part of the Assessing Officer who was having material before him since 3.10.2003 but just before the expiry of four years, all of sudden notice u/s. 148 regarding reopening of assessment has been issued w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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