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TMI Blog2020 (2) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... f is at Annexure-K. 2. After service of notice, the respondents having entered appearance through their Panel Counsel resist the writ petition making submission in justification of the impugned order essentially contending that the answering respondent has formed an opinion as to the "failure of disclosure" of not effecting the TDS and therefore the impugned action cannot be faltered. 3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that the impugned proceedings are unsustainable for the following reasons: (a) Sec.147 of the Act provides for re-opening of assessment where the income has escaped assessment; the Proviso to this section prescribes a limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year". (b) in the notice dated 01.09.2017 at Annexure-K the 2nd respondent has assigned the reasons for resorting to re-opening of the assessment, relevant part of which reads as under: "From the above discussion, is clear that assessee was liable to deduct TDS but failed to do so before making payments for onsite services and selling commission to the AEs. Hence, it is required to disallow the said expenses u/s.40(a)(i) of the IT Act. Therefore I have reason to believe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year, no action can be taken under section 147 after the expiry of four years from the 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 disclose all material facts necessary for his assessment for that assessment year.(Emphasis supplied by us) The reasons recorded by the Assessing Officer nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year. It is needless to mention that the reasons are required to be read as they were recorded by the Assessing Officer. No substitution or deletions is permissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being had to a specific reason assigned by the answering respondent as to nondeduction of TDS and not as to failure on the part of the assessee to disclose such deduction; even otherwise, the decision cited does not come to the rescue of the Revenue since there was sufficient material on record, to form an opinion as to the failure on the part of the assessee to disclose in that case; thus the facts of the present case are miles away from that of the decision cited; and, (e) the last contention of the counsel for the Revenue that the matter be remanded for consideration afresh inasmuch as the file relating to the petitioner may disclose some reasons is bit difficult to countenance, even by assuming that the said contention is factually tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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