TMI Blog2006 (12) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Bhandawat, learned counsel appearing for the Revenue, has made a submission that the Revenue will supply the reasons for reopening to the petitioner and limitation for filing the return shall apply from the date of supplying the reasons. In view of the statement made by Shri Bhandawat, nothing survives in this petition. The petition is, therefore, disposed of finally with the direction that the assessee may appear before the assessing authority, Bikaner by or on January 23, 2003, and the assessing authority is requested to supply him the reasons for reopening and the assessee shall have a right to file the return reckoning the period of limitation." The petitioner has challenged the notice issued by respondent No.1 under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(3). However, the assessee resorted to section 154 by moving an application for rectification of the intimation reducing the refund claimed by the assessee. The application moved by the assessee under section 154 was allowed and the adjustment made by the Assessing Officer were deleted and the assessment was restored to the returned income. However, since no notice under section 143(2) for the regular assessment under section 143(3), was sent within the time prescribed, notice under section 148 was issued in the first instance on May 14, 1997, relying on the circular issued by the Central Board of Direct Taxes and regular assessment was made. The assessment order framed in pursuance of the said notice was annulled by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the challenge to the notice under section 148 is no more or no less. The Assessing Officer has not supplied the copy of the reasons recorded by him when such assumption order was challenged though demanded by the assessee. Hence, when challenge to issue notice was made on the ground that the condition precedent for issuing notice did not exist and the Assessing Officer had no jurisdiction to issue the impugned notice, it was the duty of the Assessing Officer to place that material before the court. It is trite to say that adequacy and sufficiency of reasons and the material on the basis of which satisfaction has been recorded is not the subject-matter of judicial review. If there is some relevant material having nexus to the formation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under subsection (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year." Sub-section (2) of section 148 mandates that the Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so. Section 149 provides limitation within which notice under section 148 be issued in cases not covered by the proviso to section 147. Therefore, key to adjudge the validity of assumption of juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A bare perusal of the reasons goes to show that the Assessing Officer has recorded his reasons only on the basis of his opinion about the net profit rate which ought to provide the correct result of the profit of the liquor business. We are constrained to say that what is in the opinion of the Assessing Officer should be the correct profit has no nexus with formation of any opinion that there has been any failure on the part of the assessee to disclose truly and fully all material facts necessary for the assessment. If the Assessing Officer while making the assessment has an opinion that the books of account are maintained in such a manner that it is not possible to compute the income correctly, he may reject the books of account and resort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng has been stated that what relevant fact or material, if any, was not disclosed by the assessee. We may invite attention to the scope of subjective satisfaction. It is tritely stated that subjective satisfaction may be arrived at by the Assessing Officer, it cannot be founded on the material which has no nexus with the formation of the requisite belief, or on non-existent material. The attention may be invited to the decision of the Supreme Court in Barium Chemicals Ltd. v. Company Law Board [1966] 36 Comp Cas 639 (SC) ; AIR 1967 SC 295. Present is a case in which from the reading of the reasons recorded by the Assessing Officer before issuing notice under section 148 reveals that there was no material before the Assessing Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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