TMI Blog2017 (9) TMI 1896X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee had concealed these facts at the time of original assessment - Revenue authorities has also not brought out a case that any fresh tangible material has surfaced after the original assessment made U/s.143(3) - Revenue has no jurisdiction to reopen the case of the assessee u/s.147 of the Act which is beyond the period of four years from the end of the relevant assessment year, further the assessee had fully and truly disclosed all materials at the time of original assessment U/s 143(3) - Decided in favour of assessee. - I.T.A.No.3345/Mds/2016, CO No.15/Mds/2017 (in ITA No.3345/Mds/2016) - - - Dated:- 12-9-2017 - Shri N.R.S. Ganesan, Judicial Member And Shri A. Mohan Alankamony, Accountant Member Revenue by: Shri V. Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng viz., bullion, by holding that it is a speculation loss which cannot be set-off against the normal business income of the assessee. 5. Assessee s Cross Objection on re-opening U/s.147 148 of the Act:- The assessee had challenged the reopening U/s.147 148 of the Act vide its letter dated 12.11.2013 on the following grounds: (i) Assessment cannot be reopened on the basis of information available with the Ld.AO at the time of original scrutiny assessment. (ii) Condition precedent for assumption of jurisdiction U/s.147 of the Act beyond the period of 4 years have not been satisfied because the assessee had disclosed fully and truly all the material facts necessary for the assessment before the Ld.AO. The Ld.AO held the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have a live link with the formation of the belief. .. There has been recording of reasons for reopening, based on tangible material, to come to the conclusion that there is escapement of income from assessment. In this regard, it is also important to quote some of the observations made by the Hon'ble Gujarat HC, in the case of Praful Chunilal Patel vs ACIT, 236 ITR 832, while upholding the issue of notice u/s. 148 which is as follows: the provisions of section 147 require that the Assessing Officer should have reason to believe that any income chargeable to tax has escaped assessment, The word reason in the phrase reason to believe would mean cause or justification. If the Assessing Officer has a cause or justification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction laid out by the Supreme Court in the case of GKN Driveshafts (India) Ltd Vs. ITO 2591TR 19 and Assessee's cooperation is sought in the continuance of the Assessment Proceedings u/s. 147 ... 5.1 On appeal, the Ld.CIT(A) upheld the order of the Ld.AO by briefly stating as follows: 4.2 The matter is considered. The AO is Para 2-5 of the impugned order has given elaborate reasons on the assumption of jurisdiction under section 147 of the Act. On consideration of he same, I do not find any infirmity in the actions of the AO. The assessment proceedings are held to be valid, and grounds of appeal raised in this regard stand dismissed. 5.2 Before us the Ld.AR submitted that the assessee had produced all the relevant documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.143(3) of the Act. Considering these aspects, the decisions cited by the Ld.AR applies to the case of the assessee. The most relevant case laws are extracted herein below for reference: (i) Hon ble Jurisdictional Apex Court in CIT v. Kelvinator of India Ltd reported in 320 ITR 0561 had held that After 1st April,1989, AO has power to reopen the assessment under s.147 provided AO has reason to believe that income has escaped assessment and there is tangible material to come to the conclusion that there is escapement of income; mere change of opinion cannot per se be reason to reopen. (ii) Hon ble High Court of Madras in TANMAC India v. DCIT reported in 97 CCH 0189 had held that Department cannot be permitted to avail of the exte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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