TMI Blog2016 (3) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... lity under the normal provisions and also as per under section 115JB. AO while computing the income in the original assessment under section 143(3) has taken note of this fact. So now, the AO cannot hold that such a tax liability computed by the AO is erroneous or there is any failure on the part of the assessee to disclose fully and truly all material facts. Conclusion of the CIT(A) for holding that, reopening of the assessment is bad in law is thus affirmed. Accordingly, we also direct that such an action initiated under section 148 should be quashed. CIT(A) has decided this issue in favour of the assessee after following the decision of Horizon Capital Ltd [ 2011 (10) TMI 489 - KARNATAKA HIGH COURT] wherein it has been held that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that of the Assessing Officer be restored . 2. At the time of hearing, none appeared on behalf of the assessee nor any adjournment letter was filed, hence we proceed to decide the appeal ex-parte qua the assessee on merits after hearing Ld. DR. 3. The brief facts are that, the assessee has filed its return of income under section 139(1) on 27.10.2007 declaring total income of ₹ 16,11,71,435/-. The said return of income was selected for scrutiny and order under section 143(3) was passed vide order dated 23.04.2009, assessing the total income at ₹ 16,13,39,460/- and the total tax payable worked out at ₹ 82,09,792/- after giving rebate under section 88E of ₹ 4,63,93,679/-. After having completed the assessment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 143(3) and, therefore, such a reopening is bad in law. However, the Ld. AO did not agree with the contention of the assessee and held that no rebate can be allowed while computing any tax liability under section 115JB. 4. In the first appellate proceedings, the Ld. CIT(A), held that such a reopening of assessment under section 148 is bad in law, on the ground that all the material facts for computing the taxable income was there on records and there is no failure on the part of the assessee to disclose truly and fully all material facts necessary for the assessment. Once an assessment has been completed under section 143(3), then no action under section 147 can be taken after the expiry of 4 years, unless any income chargea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completed under section 143(3) then reopening of the assessment can be done only when there is failure on the part of the assessee filed a return under section 139 or there is failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. Such a failure of the assessee has to be ascribed and demonstrated by the AO in the reasons recorded itself. Here in this case, it is an admitted position that, there is neither any failure on the part of the assessee either to furnish the return of income under section 139(1) nor any failure to disclose fully and truly all material facts necessary for the assessment which is evident from the bare perusal of the reasons recorded and even from the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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