TMI Blog2021 (7) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the second respondent in proceedings dated 02.03.2015 and perusal of the order would reveal that the assessee failed to disclose certain amount in the tax calculation and subsequently for the taxation. Hence, the said discrepancy was found as a failure on the part of the assessee to disclose fully and truly all material facts Assessee failed to disclose certain amount, which resulted failure on the part of the assessee to disclose fully and truly all materials. The very ground taken by the assessee that it has furnished/disclosed fully and truly all material facts deserves no merit consideration. The second respondent could able to ascertain certain material facts establishing failure on the part of the assessee to disclose the facts fully and truly. Regarding the ground of availability of fresh material for reopening of assessment proceedings, this Court is of the considered opinion that Explanation 2(c) to Section 147 would be relevant - In the present case, Explanation 1 and Explanation 2(c) to Section 147 are to be considered. Mere production of books of account and the details by the assessee are one aspect of the matter and even with reference to such books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osing Minimum Alternate Tax under Section 115JB of the Act, after claiming the set off brought forward business loss as well as the unabsorbed depreciation. The said return of income was taken up for scrutiny by the second respondent and a notice under Section 143(2) of the Act was issued to the petitioner and the petitioner-company furnished all the details as called for by the second respondent in the said scrutiny assessment proceedings and the Assessing Officer passed the final order of assessment dated 27.07.2009 after completion of the procedures. 4.The second respondent initiated proceedings under Section 147 of the Act and a notice under Section 148 of the Act was issued on 28.03.2014 beyond the period of four years, but within a period of six years. On receipt of Section 148 notice, the petitioner responded vide letter dated 14.04.2014 with a request to treat the original return of income as return of income filed in response to the notice issued under Section 148 of the Act. The Assessing Officer sent reminder letter dated 27.08.2014 for filing the return of income in response to the notice issued under Section 148 of the Act dated 21.03.2014. Once again the second res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner reiterated that the reasons furnished in the impugned order and the proceedings regarding such reasons are completely adjudicated by the Assessing Officer at the time of passing the original assessment order. Even in the counter, the second respondent could not able to establish that they have recovered tangible materials for the purpose of reopening of assessment as required under the provisions of the Act and therefore, reopening of the assessment is based on change of opinion and thus, the impugned order is liable to be set aside. 8.The learned counsel for the petitioner is of an opinion that it is a case where the reopening proceedings are initiated beyond the period of four years and during the fag end of sixth year. Thus, the ingredients contemplated under Proviso to Section 147 are to be complied with scrupulously. When there is no tangible materials available on record and the petitioner has truly and fully furnished all the details at the time of original assessment, the initiation of reopening the proceedings beyond four years is impermissible and thus, the requirement prescribed under Proviso to Section 147 has not been complied with and on this ground a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts etc., alone cannot be a ground restraining the Assessing Officer to invoke the powers under Section 147 of the Act. Various other circumstances are contemplated under Section 147 of the Act and therefore, the case of the assessee, that it is a change of opinion, is incorrect and thus, the writ petition is liable to be dismissed. 12.The learned Senior Standing Counsel referred to the order passed by this Court in W.P.No.31294 of 2014 filed by the petitioner, wherein this Court directed the Assessing Officer to consider the objections raised by the petitioner, afford an opportunity of personal hearing and pass orders on merits. The direction was issued in view of the fact that the Assessing Officer, at the first instance, while passing the order, has not elaborated the reasons in clear terms. Thus, the High Court thought fit to direct the Assessing Officer to consider the objections and pass orders by following the procedures and the principles laid down in GKN Driveshafts (India) Ltd. (supra). Subsequently, the Assessing Officer, considered all the aspects on merits and in accordance with law and passed a speaking order, which is impugned in the present writ petition. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reopening issued at the first instance by the Assessing Officer was ambiguous and the reasons were not made clear. Thus, the petitioner filed a writ petition in W.P.No.31294 of 2014 and this Court passed an order on 01.12.2014 and the operative portion is extracted hereunder:- 8.In the light of the above direction, duty is cast upon the Assessing Officer to dispose of the objections raised by the petitioner by passing a speaking order, thereby the Assessing Officer should consider the objections raised by the petitioner, when the petitioner has specifically contended that the assessment is complete in all respects after due consideration and a detailed reply was given by the petitioner on 19.06.2009. 9.Accordingly, this Court is of the view that the Writ Petition is pre-mature and at this stage, the impugned notice cannot be quashed. However, in the light of the decision of the Hon'ble Apex Court made in the case of G.K.N.Driveshafts (India) Ltd., (supra), it is the duty of the Assessing Officer to consider the petitioner's objections and in my view he should judiciously take note of the factual and legal contentions raised by the petitioner in their objection d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrated, would establish that the assessee failed to disclose certain amount, which resulted failure on the part of the assessee to disclose fully and truly all materials. The very ground taken by the assessee that it has furnished/disclosed fully and truly all material facts deserves no merit consideration. The second respondent could able to ascertain certain material facts establishing failure on the part of the assessee to disclose the facts fully and truly. 18.Regarding the ground of availability of fresh material for reopening of assessment proceedings, this Court is of the considered opinion that Explanation 2(c) to Section 147 would be relevant. The concept of has reason to believe is wider enough to cover numerous circumstances and possibilities for reopening of assessment and such a wider scope is contemplated under the Act with an object to deal with certain cases where the assessee has not produced true and full facts at the time of original assessment. The original assessment orders are passed based on the return of income filed by the assessee. Thus, any discrepancy, new material or inference or otherwise are identified by the Assessing Officer, then he is empower ..... X X X X Extracts X X X X X X X X Extracts X X X X
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