TMI Blog2017 (4) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer that any income chargeable to tax has escaped assessment for A.Y. in question. There has to be some valid ground, that is some relevant document or material having escaped notice or there has been wrong calculation due to human error bona fide committed, or ignorance of correct and complete facts due to mistake or ignorance of fraud/ misrepresentation. It is not in dispute that Assessee has disclosed full and correct facts and there was no misrepresentation or concealment on the part of Assessee at all. With open eyes, after examining the entire matter, AO, completed assessment under Section 143(3) and that being so, subsequent changed opinion that 100% depreciation has wrongly been allowed, it could not have issue notice under Section 147. In this regard, view taken by Tribunal, we find is correct and in accordance with law. Question No.2, therefore, is answered against appellant and in favour of Assessee. - Income Tax Appeal No. 21 of 2016 - - - Dated:- 6-4-2017 - Sudhir Agarwal And Virendra KumarII JJ. For the Appellant : Manish Misra For the Respondent : Pradeep Agrawal ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of excess deduction on temporary site accommodation and ₹ 8,78,96,032/on account of shuttering and minor equipments, etc., as escaped assessment due to failure on the part of Assessee. 7. Aforesaid reasons for reopening of Assessment were also provided to Assessee by Assessing Officer vide letter dated 27.07.2012. Notice was issued after getting approval from Commission of Income Tax, Lucknow. Thereafter, notices under Section 143(2) and 142(1) were issued. Assessee filed objections against initiation of proceedings under Section 148, which was disposed of vide letter dated 16.01.2013. Notice under Section 142(1) was issued on 26.02.2013 to Assessee requiring to justify its claim of 100% deduction on temporary site accommodation at ₹ 5,98,17,813/and to furnish complete details of tool, minor equipments, etc., for which it claimed deduction of ₹ 10,34,07,097/- . No reply was submitted and, thereafter, Assessing Officer passed revised assessment order dated 30.03.2013 adding ₹ 5,53,31,477/- , ₹ 8,78,96,032/- and ₹ 3,06,37,641/- (total ₹ 17,38,65,150/). Assessee preferred appeal before Commissioner of Income Tax (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see could not dispute this fact and hence, otherwise view taken by Tribunal, in our view, cannot be sustained. Question No.1, therefore, is answered in favour of appellant and it is held that limitation in the case in hand was six years under Section 149(i)(b), hence, notice under Section 147 was not barred by limitation and finding of Tribunal on this issue, which otherwise, is reversed. 12. Now coming to the second question, it is not in dispute that entire amount and deduction claimed by Assessee was fully disclosed to Assessing Officer when assessment was made by allowing claimed deduction under Section 154, on 07.12.2007, and subsequent orders under Sections 144, 251 and 254 would make no substantial difference in this regard. That being so, we have to examine whether here is a case of change of opinion or it is a case of genuine reason to believe to Assessing Officer that any income chargeable to tax has escaped assessment for A.Y. in question. 13. This issue has been considered time and again, hence, we do not add to the length of this judgment by giving entire such decisions and suffice it to refer a few such authorities. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that of an honest and reasonable person based upon reasonable grounds and that the Income-tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The Incometax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied, does not exist or is not material or relevant to the belief required by the section. The court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the court . 17. In Calcutta Discount Co. Ltd. Vs. ITO (1961) : 41 ITR 1919 (SC) , Court held that duty of disclosing primary facts relevant to the decisions of the question before assessing Authority lies on the Assessee and it is onerous duty of Assessee to disclose truly and fully all the primary facts. Once all the primary facts have been disclosed, Assessee thereafter is not required to provide any further assistance by way of disclosure to Assessing Officer. Relevant observations of Court are as under: Does the duty, however, extend beyond the full and truthful disclosure of all primary facts ? In our opini ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
