TMI Blog2019 (5) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act beyond a period of four years in absence of existence of any tangible material outside of the existing record and in absence of failure on part of the petitioner to disclose truly and fully all material facts necessary for assessment for the relevant assessment year. Admittedly, no new fact is brought on record by the Assessing Officer and nor there is any failure on part of the petitioner to disclose fully and truly all material facts necessary for the relevant assessment year and, therefore, as per First Proviso to section 147 of the Act, Assessing Officer cannot assume jurisdiction. The record of the case shows that the respondent has called for all the details during the assessment proceedings including the tax audit report and computation of income which were duly submitted and were considered at the time of original assessment proceedings. Petitioner was claiming deduction for belated payment of Employee's Provident Fund contribution as it was paid before due date of filing the return. The petitioner also relied upon various decisions which were available at the relevant point of time for filing the return of income. Therefore, as all the relevant detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the assessment order under section 143(3) of the Act on 31.12.2013 computing the total income of ₹ 40,64,20,625/, accepting the returned income as per the return filed by the petitioner. 4.3 Thereafter, the respondent issued notice under section 148 of the Act on 28.3.2018 for A.Y. 20112012. The petitioner filed the return of the same income on 24.4.2018 and upon request of the petitioner, reasons for reopening were provided by the respondent which read as under : Reasons u/s 147 In the case of M/s. Deloitte Haskins Sells Asst Year201112 PAN No. AADFD2337G The assessee firm is a practising Chartered Accountant had filed the return of inocme for AY 201112 on 30/09/2011 declaring total income of ₹ 40,64,20,630/. The assessment u/s 143(3) of the IT Act was finalized on 31.12.2013 and the total income was assessed at ₹ 40,64,20,630/. It has been observed from the Tax Audit Report that the auditor has reported that the following payments of employees EPF contribution was not paid in time. Sr. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attracting provisions of Explanation 1 of section 147 of the Act. It is pertinent to mention here that in this case assessment was made as stipulated u/s 2(40) of the Act. However, as discussed in reason to believe in this case the income chargeable to tax has been under assessed by an amount of ₹ 18,60,886/. In view of the above facts the provisions of sub Clause (i) of clause (c) of Explanation2 section 147 are applicable to the facts of this case and the assessment year under consideration is deemed to be case where income chargeable has escaped assessment because of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the assessment year under consideration. In view of the above l have reason to believe that the taxable income to the extent of ₹ 18,60,886/chargeable to tax has escaped assessment by reason of the failure on the part of assessee to disclose fully and truly all material facts necessary for his assessment for AY 20112012 and is a fit case for initiation of proceedings u/s 147/148 of the IT Act, 1961. Therefore, on the basis of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned notice issued by the respondent under section 148 of the Act by filing this petition. 5 Mr. Manish Shah, learned advocate for the petitioner invited the attention of the court to the reasons recorded to submit that the assessment is sought to be reopened on the ground that the assessee has not disallowed expenditure of ₹ 18,60,886/pertaining to Employees' Provident Fund contribution for the month of June 2010 under section 43B of the Act, as the same was not paid before prescribed date under the provisions of the Employees Provident Fund Act. He submitted that as the said amount was paid on 6.9.2010 i.e. before the due date of filing the return of income, no disallowance of same was made in the return of the income. He further submitted that the impugned notice is issued on the basis of the tax audit report and computation of income filed by the petitioner, and on perusal of the same, the respondent found that the petitioner has not disallowed and added to the total income the aforesaid amount according to section 2(24)(x) read with section 36(1)(va) of the Act. It was submitted that fact of delay in payment of Employees' Provident Fund c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reasons recorded by the Assessing Officer, it has been observed that the petitioner had failed to make payment of Employees' Provident Fund contribution of ₹ 18,60,886/on or before the prescribed date and hence, the said amount is required to be disallowed and the petitioner was accordingly required to disallow the said amount and add the same to the total income as per the provisions of section 2(24) (x) read with section 36(1)(va) of the Act. As the petitioner had failed to add the said amount in the total income in the return of income, the Assessing Officer had formed a belief and recorded the satisfaction that the petitioner had not disclosed fully and truly all material facts necessary for the assessment and the income of ₹ 18,60,886/has escaped assessment. It was further submitted that the Assessing Officer has issued the impugned notice after following the due procedure and in consonance with the provisions of the Act. 8 Reference was made to the affidavitinreply filed on behalf of the respondent, wherein reliance is placed on the decision of Apex Court in case of Commissioner of Incometax v. P.V.S. Beedies (P) Ltd. , (1999) 237 ITR 13, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned notice itself. Therefore, the Assessing Officer cannot issue notice under section 148 to reopen a concluded assessment i.e. scrutiny assessment under section 143(3) of the Act beyond a period of four years in absence of existence of any tangible material outside of the existing record and in absence of failure on part of the petitioner to disclose truly and fully all material facts necessary for assessment for the relevant assessment year. Admittedly, no new fact is brought on record by the Assessing Officer and nor there is any failure on part of the petitioner to disclose fully and truly all material facts necessary for the relevant assessment year and, therefore, as per First Proviso to section 147 of the Act, Assessing Officer cannot assume jurisdiction. 10 The record of the case shows that the respondent has called for all the details during the assessment proceedings including the tax audit report and computation of income which were duly submitted and were considered at the time of original assessment proceedings. Note no.3 forming part of the notes to return of income, reads as under : 3. Payment of employee s Provident Fund ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
