TMI Blog2005 (8) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ut jurisdiction and the same are liable to be quashed and set aside on this short ground - - - - - Dated:- 16-8-2005 - Judge(s) : V. C. DAGA., J. P. DEVADHAR. JUDGMENT The judgment of the court was delivered by V.C. Daga J.-This petition is directed against the two notices dated February 20, 1990 (exhibits E and E-1) and notice dated June 3, 1991 (exhibit G), whereby the power to reopen the completed assessment has been invoked. The facts: The petitioner after the receipt of the above notices requested the Assistant Commissioner of Income-tax, Circle 24(2), Piramal Chambers, Bombay, to provide or disclose reasons recorded by him prior to issuance of the notices for reopening the assessment. No reasons were disclosed or supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enior counsel appearing for the petitioner-assessee, submits that the reasons recorded do not disclose any material to show that the income has escaped assessment. No material is available on record to justify the formation of belief; no allegations alleging failure on the part of the petitioner to disclose any particular material resulting in escapement of income is to be found in the reasons recorded. Mr. Andhyarujina further submits that the power to reopen has been exercised after a period of four years from the end of the assessment year. That, if the power to reopen is to be exercised by the Assessing Officer after the period of four years from the end of the assessment year, then it is incumbant on the part of the Department to alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d should not suffer from any vagueness. The reasons recorded must disclose his mind. The reasons are the manifestation of the mind of the Assessing Officer. The reasons recorded should be self-explanatory and should not keep the assessee guessing for the reasons. Reasons provide the link between conclusion and evidence. The reasons recorded must be based on evidence. The Assessing Officer, in the event of challenge to the reasons, must be able to justify the same based on material available on record. He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish the vital link between the reasons and evidence. That vital lin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case, on the material facts disclosed, the assessee had claimed depreciation at 40 per cent, and the same was allowed by the Assessing Officer. It is not the case of the Revenue that the facts disclosed by the assessee were incorrect or that there were any other facts which were material for the assessment which have not been disclosed by the assessee. Under the circumstances, if there is no failure to disclose material facts, then, even if there is excess relief granted, the assessments cannot be reopened beyond the period of 4 years from the end of the relevant assessment years. This court in the case of IPCA Laboratories Ltd. [2001] 251 ITR 416 and in the case of Bhor Industries Ltd. [2004] 267 ITR 161 (Bom) has held that noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have been resorted to by the assessee without knowing the reasons recorded for reopening, learned counsel for the Revenue conceded that in the absence of communication of the reasons, the assessee could not have resorted to the alternate remedy. He thus agreed that in the facts and circumstances of the case it was open for the petitioner to invoke the writ jurisdiction of this court. So far as the power invoked by the Assessing Officer to reopen assessment beyond the period of four years as urged by the petitioner is concerned, learned counsel for the Revenue could not justify the reopening based on the material available on record. He fairly conceded that reopening is beyond the period of four years from the end of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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