TaxTMI 
TaxTMI 
2021 (9) TMI 200
X X X X Extracts X X X X
X X X X Extracts X X X X
....2. This appeal is directed against the order dated 30.6.2021 made in W.P.No.9409 of 2016. 3. The said writ petition was filed by the appellant challenging the notice issued by the respondent - Assessing Officer under Section 148 of the Income Tax Act, 1961 (for brevity, the Act) reopening the assessment for the year 2010-11. 4. At the time when the said writ petition was entertained in the year 2016, an order of interim stay was granted. 5. The said writ petition was dismissed by the impugned order on 30.6.2021 on the sole ground that the reasons stated in the order passed by the Assessing Officer disposing of the objections, filed by the assessee, by order dated 26.2.2016, could be scrutinized for its correctness only in the reassessmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, but he cannot review an assessment in the sense that there cannot be a rethinking or different opinion on the same material, which was the subject matter of the original assessment proceedings. 9. So far as maintainability of the writ petition is concerned, the Hon'ble Supreme Court in the case of M/s.Whirlpool Corporation Vs. Registrar of Trademarks [reported in 1998 (8) SCC 1] held that writ petitions are maintainable and that mere existence of an alternate remedy will not, always, be a bar for entertaining writ petitions especially when the orders impugned are questioned on the ground of violation of the principles of natural justice, when there is total lack of jurisdiction and when there is manifestly arbitrariness and illegali....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bmitted their objections for reopening firstly questioning the jurisdiction to initiate the reassessment proceedings since the details with regard to issue of shares were provided in their submissions before the Assessing Officer at the first instance on 09.11.2012 and the details of expenses relating to issue of shares were provided in their submissions dated 05.12.2012. 13. The assessee placed reliance on several decisions and referred to the decision of the Full Bench of the High Court of Delhi in the case of CIT Vs. Kelvinator of India Ltd.[reported in (2002) 256 ITR 1] wherein it was held that when a regular order of assessment was passed under Section 143(3) of the Act, a presumption could be raised that such an order had been passed....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of mind. The other paragraphs namely paragraphs 3, 3.1, 3.2, 3.3 and 4 are all extracts from various decisions of the Hon'ble Supreme Court and this Court. The so-called discussion is in paragraph 5, which does not deal with the objections given by the assessee questioning the jurisdiction of the Authority to reopen the proceedings. 17. It is demonstrated before us that when the assessment was initially taken up and the notice under Section 142(1) of the Act dated 10.7.2012 was issued, the Assessing Officer put out a questionnaire containing as many as 20 questions and it is submitted that question Nos.13 and 15 would be germane for the issue on hand, which dealt with a detailed note on the conversion of preference shares into equity ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the compulsory convertible preference share issued was never discussed by the Assessing Officer nor with regard to the issue as to whether it has to be amortized as per Section 35D of the Act. 20. As held by the Hon'ble Supreme Court, it is not for the assessee to tell as to how the Assessing Officer has to complete the assessment. The duty of the assessee is to make a full and true disclosure of all materials. If the assessee is put on notice calling for additional materials, the assessee is duty bound to fully and truly disclose all materials and thereafter, it is for the Assessing Officer to take a call on the materials. 21. We are satisfied that whatever be the concern, it was to be traced in the assessment under Section 143(3) ....