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TMI Blog2017 (7) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Year ('AY') 2008-09 declaring an income of Rs. 1334,87,70,381/-. Its case was picked up for scrutiny and notice was issued to it under Section 143 (2) of the Act. As part of the scrutiny, a questionnaire dated 20th October, 2009 was issued to the Petitioner by the Assessing Officer ('AO') raising various queries. This was duly replied by the Petitioner on 29th October, 2009. Further documents were also submitted on 17th November, 2009 by the Petitioner. An assessment order under Section 143 (3) of the Act was passed by the AO on 30th December, 2009. 3. Thereafter, two notices under Section 148 of the Act came to be issued on 31st May, 2012 and 28th March, 2013 for the AY 2008-09. Both these notices came to be challenged by the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osts." 4. Pursuant to the said order, a fresh notice was issued to the Petitioner on 16th July, 2015 under Sections 147/148 of the Act for the same AY viz., 2008-09. The two reasons for reopening the assessment read as under: "2.1 Disallowance u/s 14-A r.w. Rule 8-D of the IT Act, 1961; ...... 2.2 Complex web of subsidiaries & colourable device of transferring shares instead of substantial transfer of landed properties. ........" 5. The Petitioner filed its objections to the reopening of the assessment on 28th July, 2015. The said objections were rejected on 9th November, 2015. The Petitioner thereafter filed the present writ petition seeking the quashing of the notice under Section 148 of the Act dated 4th March, 2015 and order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into for opening the assessment. The reasons recorded by the AO do not satisfy the legal requirement under the first proviso to Section 147 of the Act. Mr. Aggarwal further submitted that the Petitioner has already gone through two rounds of enquiry, inasmuch as, it was also issued a notice under Section 263 of the Act on 30th December, 2011 for the very same AY. Mr. Aggarwal also relied upon the decision in Agya Ram v. Commissioner of Income Tax, Delhi, (2016) 386 ITR 545 (Del). Mr. Aggarwal thus submitted that this is nothing but a case of change of opinion on the same material, which is impermissible in law. Respondent's Submissions 9. Mr. Zoheb Hossain, learned Senior Standing Counsel for the Revenue, submitted that the earlier two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the case. The sufficiency or correctness of the material was not to be examined. Analysis 12. There are a large number of cases that have been decided by this Court with respect to reopening of assessments under Sections 147/148 of the Act. After a period of four years under the first proviso to Section 147 of the Act, for re-assessment proceedings to be initiated, the following pre-conditions have to be satisfied: The original assessment had to be completed under Section 143 (3) of the Act More than four years have lapsed from the end of the relevant AY The income chargeable to tax has escaped assessment Due to failure of the Assessee to make a return under Section 139, or In response to a notice under sub-section 1 of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue to sustain the impugned notices. An interesting feature of the impugned notice dated 4th March, 2015, is that the reasons contained therein are a verbatim reproduction of the reasons which were recorded in the notice dated 28th March, 2013 which came to be set aside by this Court on 3rd September, 2014. The re-issuance of the quashed notice in identical terms could not have been the purpose of the order dated 3rd September, 2014 passed by this Court. The said impugned notice dated 28th March, 2013 was set aside and proceedings pursuant to the said notice stood quashed. The direction to issue fresh notice keeping in mind the first proviso of Section 147 of the Act clearly meant that the Revenue had to satisfy the rigors of the said pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sper of the failure by the Petitioner to make a full and true disclosure of all the material facts necessary for the assessment. 21. Thus, the impugned notice does not satisfy the rigors of Sections 147/148 of the Act as there has been no non-disclosure of the material facts by the Petitioner. In fact, even the reasons accompanying the impugned notice do not even say that there is any failure by the Petitioner to disclose fully and truly all the material facts. 22. The Supreme Court in Kelvinator (supra) held that: "6. ...However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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