TMI Blog2019 (12) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... d on a mere change of opinion; and the assumption of jurisdiction by the AO u/s 147 beyond a period of four years from the end of the relevant assessment year without there being any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment, is invalid. The impugned notice issued under section 148 of the Act, therefore, cannot be sustained. - R/Special Civil Application No. 17015 of 2018 - - - Dated:- 24-9-2019 - HONOURABLE MS.JUSTICE HARSHA DEVANI AND HONOURABLE MS. JUSTICE SANGEETA K. VISHEN MR B S SOPARKAR FOR THE PETITIONER MR. VARUN K. PATEL FOR THE RESPONDENT ORAL JUDGMENT PER: HONOURABLE MS.JUSTICE HARSHA DEVANI 1. Rule. Mr. Varun K. Patel, learned senior standing counsel, waives service of notice of rule on behalf of the respondent. Having regard to the controversy involved in the present case, which lies in a very narrow compass, the matter was taken up for final hearing today. 2. By this petition under article 226 of the Constitution of India, the petitioner has challenged the notice dated 28th March 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of reopening the assessment, the Assessing Officer is required to record satisfaction to the effect that income chargeable to tax has escaped assessment on account of failure on the part of the petitioner to disclose fully and truly all material facts. Adverting to the reasons recorded for reopening the assessment, it was pointed out that there is not even a whisper therein to indicate any failure on the part of the petitioner to disclose fully and truly all material facts. It was contended that therefore, the assumption of jurisdiction on the part of the Assessing Officer beyond a period of four years from the end of the relevant assessment year, without there being any failure on the part of the petitioner to disclose fully and truly all material facts, is without authority of law. 5.2 Lastly, it was submitted that even on merits, on the reasons recorded, the reopening of assessment is not sustainable, inasmuch as, the Assessing Officer seeks to reopen the assessment on the ground that the assessee has invested an amount of ₹ 1,26,31,890/- in plant and machinery on 31st March 2011 whereas the assessee was required to maintain a limit of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mere change of opinion; and secondly, whether the reopening of assessment beyond a period of four years from the end of the relevant assessment year is justified? 8. As can been seen from the reasons recorded, the Assessing Officer seeks to reopen the reassessment mainly on the ground that on the basis of the facts of the case, information and details available on record as well as relevant provisions of law, it is found that the assessee has claimed incorrect deduction to the tune of ₹ 2,26,99,091/- [deduction claimed deduction disallowed at the time of proceedings under section 143(3)] thereby taxable income to the extent of ₹ 2,26,99,091/- has escaped assessment in view of section 80IB(3) of the Act. According to the Assessing Officer, he, therefore, has reason to believe that by not disallowing the sum of ₹ 2,26,99,091/-, the petitioner has not truly and fully disclosed the taxable income for taxation. 9. The facts as emerging from the record reveal that in this case there was a scrutiny assessment under sub-section (3) of section 143 of the Act, which culminated into an order dated 21st March 2014, whereby the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestment in plant and machinery for small enterprises was five crore rupees, whereas the original cost of plant and machinery as on 31st March 2011 in the case of the petitioner was ₹ 1,44,79,028/-. Hence, the petitioner fulfills all the conditions for the purpose of deduction under section 80IB(3)(ii) of the Act. The petitioner, accordingly, requested the Assessing Officer to allow the claim of the petitioner under section 80IB(3)(ii) of the Act. 11. Furthermore, during the course of assessment proceedings, the partner of the petitioner, through their Chartered Accountants had given another reply dated 5th March 2014 in response to particulars called for by the Assessing Officer, whereby he had furnished further details with regard to the claim under section 80IB(3)(ii) of the Act. Subsequently, yet another reply dated 11th March 2014 came to be submitted by the petitioner with reference to particulars called for by the Assessing Officer, once again, relating to the claim of deduction under section 80IB(3)(ii) of the Act. It is after considering the explanation given by the petitioner that the Assessing Officer had, vide order dated 21st March 2014, framed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, it is evident that all the material necessary for assessment was duly produced before the Assessing Officer at the time of scrutiny assessment, and it is on the basis of such material that the Assessing Officer has considered the claim of the petitioner for deduction under section 80IB (3) of the Act. Under the circumstances, by no stretch of imagination can it be said that there was any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the year under consideration, so as to attract the first proviso to section 147 of the Act. Under the circumstances, in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment, the Assessing Officer is not justified in reopening the assessment beyond a period of four years from the end of the relevant assessment year. 14. Therefore, on both counts the petition must succeed, namely that the reopening of assessment is based on a mere change of opinion; and the assumption of jurisdiction by the Assessing Officer under section 147 of the Act beyond a period of four years from the end of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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