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TMI Blog2018 (5) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... filed his return of income on 24th April 2017 showing income at Rs. Nil, after claiming deduction under Chapter VIIA of the Act amounting Rs. 3,54,29,124/=. The assessee was given copy of the reasons recorded for reopening of the proceedings on 19th September 2017 whereupon the reasons came to be furnished to the petitioner. The reasons recorded by the respondent for reopening the assessment read as under : "5. It is also noted that the assessee has claimed the deduction of Rs. 3,53,24,885/- u/s. 80-IB(11A) of the Act against the total income of Rs. 3,54,29,124/-. The relevant statutory provisions provide for 100% deduction of income to an undertaking deriving profit from the processing,preservation and packaging of fruits. However, it is noted that the assessee has not processed, preserved and packaged fruit as illustrated below- I-Annexure-H to the financial statements contains quantitative detail of stock of finished goods, packing material and raw material, Fruit, the processing, preservation and packaging of which is the basic precondition for availing deduction u/s 80-IB(11A) is not found recorded therein. The document relied upon is enclosed as Annexure-A. II- Vide u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner to disclose fully and truly all material facts, while original assessment was made. Counsel further submitted that mere belief that income chargeable to tax as escaped assessment was not sufficient to reopen the assessment beyond the period of four years. That, as per the provision of Section 147 of the Act, even for reopening of assessment during the period of four years, it is mandatory for the Assessing Officer to record failure of the petitioner to disclose fully and truly all material facts. That, the impugned notice is issued on the basis of change of opinion which is not open for the respondent to reopen the assessment for reconsideration of the same issue without any new material available on the record. That, the notice can be issued under Section 147 of the Act if and only if, the Assessing Officer has a reason to believe that any income chargeable to tax has escaped assessment. That, during the assessment proceedings, specific queries regarding additions made to the fixed assets as well as nature of petitioner's business were furnished by the petitioner, and therefore, it is not open to just change the opinion, be it on the same set of facts, by the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the income of the petitioner at Rs. 98,40,140/=. It appears that thereafter, the impugned notice was issued by the Assessing Officer under Section 148 of the Act intending to reopen the assessment for AY 2010- 2011. In compliance of the notice issued by the Assessing Officer, the petitioner had filed reply on 21st March 2017 showing details of return of income and requested to provide reasons recorded for initiating re-assessment proceedings under the aforesaid section. On 19th September 2017, the reasons recorded by the Assessing Officer were provided to the petitioner for reopening of the assessment under Section 148 of the Act for the year under consideration. It appears that during the course of assessment proceedings, the assessee was called upon to furnish various information in support of the return of income has filed the following notices : Sr No. Particulars of Notices Copy placed in Paper Book 1 U/s. 142 [1] dated 24.08.2012 1 to 3 2 U/s. 142 [1] dated 27.09.2012 4 to 6 It appears from the aforesaid details provided by the petitioner earlier that before issuing the notice under Section 148 of the Act, particularly in respect of the claim for all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACIT v. ICIC Securities Primary Dealership Limited, reported in 348 ITR 299, the Apex Court while dismissing the Appeal filed by the Department held that, "For A.Y 1999-2000, the assessee claimed a deduction for Rs. 19.86 Crores which was allowed by the A.O in Section 143 [3] assessment. Subsequently, after expiry of four years, the AO reopened the assessment under Section 147 on the ground that the said loss was a "speculative loss" and could not be allowed as a deduction. The assessee filed a writ petition to challenge the reopening which was allowed by the High Court on the ground that though the AO was justified in his analysis that there was escapement of income, there was "nothing new" which had come to the notice of the revenue and that reopening was based on a "mere relook" which was not permissible." The ambit and scope of powers to be exercised under Section 147 of the Income Tax Act by the Assessing Officer, while reopening the assessment beyond the period of 4 years is discussed by this Court in the case of Gujarat Lease Financing Limited v. DCIT, Circle IV, Ahmedabad, reported in 360 ITR 496 [Guj], wherein, it has been observed and held in para 16, 17 and 27 as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, which has escaped the assessment. However, no such action is permissible after lapse of 4 years from the end of the relevant assessment year unless income chargeable to tax has escaped assessment on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of such assessment. The onus is on the assessee to reveal the primary facts and to draw the inferential facts would be responsibility of the Assessing Officer. Once having revealed from the record that the assessee disclosed full and complete facts and on scrutiny, at the time of original assessment all these details are examined, no change of opinion is permissible merely because there was some error either on the part of the Assessing Officer himself or because he choose not to opine on the issue or even when he changes his mind and interprets the material or law otherwise than what was done by him." Indisputably, the impugned notice issued by the Assessing Officer itself is beyond the period of four years from the end of relevant assessment year and did not comply with the requirements of proviso to Section 147 of the Act, the Assessing Officer had no jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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