TMI Blog2021 (4) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceeding under section 147 of the Act for Assessment Year 2005-06 by issuing notice under section 148 of the Act as bad in law in the absence of mentioning of any allegation against the assessee in failing to disclose fully and truly the material facts in the assessment proceeding under section 143 (3) - Merely by making a statement in the reasons recorded that the assessee s claim of 100% deduction under section 801B(11A) of the Act was incorrectly allowed cannot be said to be justified in reopening the assessment. Such order, passed by the Learned CIT(A), in our considered view is without any ambiguity so as to warrant interference. Hence the order is passed in the affirmative, i.e. in favour of the assessee and against the revenue. - ITA No.128/Ind/2015 - - - Dated:- 13-4-2021 - Hon ble Manish Borad, Accountant Member And Before Hon ble Madhumita Roy, Judicial Member For the Assessee : Shri Girish Agrawal Miss Nisha Lahoti, ARs For the Revenue : Shri Harshit Bari, Sr.DR ORDER PER MADHUMITA ROY, J.M The instant appeal is directed against the order dated 15.12.2014 passed by the Learned Commissioner of Income Tax (Appeals-1), Bhopal (MP) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being the main condition for claiming deduction under this particular section. He, therefore, relied upon the order passed by the Learned Assessing Officer under section 147 of the Act. 4. On the contrary the Learned Counsel appearing for the assessee submitted before us that the initiation of the proceeding under section 147 is bad in law. It was further submitted by him that the notice under section 148 was issued on 08.08.2011 i.e. after the expiry of 4 years from the end of relevant Assessment Year. In the absence of any tangible material, reopening of the assessment completed under section 143(3) of the Act is nothing but a change of opinion . Furthermore the assessee answered the query made by the Ld. Assessing Officer effectively relating to the claim under section 80IB(11A) of the Act with corroborating documents which is evident from the order dated 05.11.2007 passed under section 143(3) of the Act. It was further contended by the Learned Counsel appearing for the assessee, that the reasons for issuing of notice under section 148 on 08.08.2011 with the prior approval dated 04.08.2011 granted by the Learned CIT shows that the approval so granted by the Learned CIT is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been pleased to observe as follows:- Xxxxx In the reasons as furnished by the Assessing Officer, we find that there is neither an}' allegation that the assessee had failed to truly disclose any material facts at the time of assessment, nor can we readily infer the same in view of the fact that a detailed enquiry had been conducted by the Assessing Officer with regard to the identity and creditworthiness of the share_applicants and genuineness of the transactions in relation to the share application money received by the assessee. Further the mere statement that the DRl has seized certain goods of the assessee and levied a penalty also cannot be stated to be a reason for reopening of assessment of the assessee as the said statement made is neither followed by the recording of a belief that the income escaped on the count or that the assessee has failed to disclose all relevant material, fully and truly, at the stage of the first assessment. 10. Similarly, in the present case, we find that in the reasons recorded there is neither any allegation that the assessee had failed to truly and fully disclose material facts at the time of the assessment nor can we readily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the counter affidavit there was a specific allegation that there was a failure on the part of the assessee to disclose fully and truly all material facts relating to accommodation entries raised from one of the companies to the extent of ₹ 5 lakhs. Thus, one of the conditions precedent for removing the bar against taking action after the said four years period remained unfulfilled. Consequently, the notice under section 148 based on the recorded reasons supplied to the petitioners as well as the consequent order were without jurisdiction as no action under section 147 could be taken beyond the four year period. Apart from that the judgment passed by the Hon'ble Delhi High Court in the case of wel Inter-trade Private Ltd and another versus ITO reported in (2009) 308 ITR 22(Del) was considered by the learned CIT(A) while quashing the proceeding. 9. We have further considered the judgment passed by the Hon'ble Apex Court In the case of CIT V/s Kelvinator of India Ltd 2010, 187 taxmann 312(SC) where it was held that reopening of an assessment under section 147 of the Act is not permitted merely on the ground that there is change in the view of the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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