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TMI Blog2021 (9) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act. Subsequently, the case was selected for scrutiny and notice under Section 143(2) was issued on 02.08.2012, along with a questionnaire, dated 15.07.2013, calling for various details and affording an opportunity to the assessee to attend a personal hearing and explain the income declared during the relevant Assessment Year. The assessee would state that he had filed all the details as called for by the respondent/Assessing Officer from time to time, including the explanation pertaining to his professional fee receipts, purchase and sale of land, etc. After five sittings, in which the assessee was heard, the assessment was completed under Section 143(3) by order dated 20.01.2014. 4.After four years, notice, dated 29.03.2018, was issued under Section 148 of the Act. The assessee, by letter dated 26.04.2018, stating that the assessment cannot be reopened beyond four years from the end of the relevant Assessment Year, sought for the reasons for reopening, which were furnished to the assessee by proceedings of the Assessing Officer, dated 07.05.2018. 5.The Assessing Officer stated that, on going through the miscellaneous records for the Assessment Year 2011-12, the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing for the respondent. 10.On a careful reading of the order impugned in this appeal, we find that, in Para No.13 of the impugned order, the learned Single Bench has held that, a perusal of the Assessment Order as well as the objections raised by the assessee reveal that, undoubtedly, the assessee had furnished the details regarding the sale and purchase of the property through the capital gains and he has furnished details and documents pertaining to the sale and purchase of the property. Further, the Court held that the questionnaire issued by the Assessing Officer during the original assessment was complied with and the petitioner has furnished all details, which were considered by the Assessing Officer. After rendering such a finding, the Court poses a question to itself stating that it has to consider whether the reopening is sustainable with reference to the proviso to Section 147 of the Act. After setting out in brief about the purport and intent of Section 147 of the Act, in Para No.15 of the impugned order, the learned Single Bench proceeds to take note of the averments set out in the counter affidavit filed by the Assessing Officer, more particularly in Para Nos.16 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition, the Assessing Officer should be able to point out that, income chargeable to tax has escaped assessment by reasons of the failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. 13.The reasons for reopening, as mentioned above, are under three heads. However, there is no allegation that income chargeable to tax has escaped assessment on account of the failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. We say so, because, in the reasons for reopening dated 07.05.2018, the Assessing Officer would state that, on going through the assessee's miscellaneous records for the Assessment Year under consideration, the observations as pointed out in the reasons are found. Thus, it is clear that the Assessing Officer has not attributed any failure on the part of the assessee to fully and truly disclose all material particulars required to be disclosed for the assessment. If such is the case, the reopening of the assessment would be bad in law. 14.The Assessing Officer, while considering the objections to the reopening and rejecting the same, would state that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opening. The assessee had enclosed as many as ten documents, including the copies of the sale deeds, etc. The assessee also enclosed the statement from Mutual Funds and the contract notes from the broker in support of the same, details of Bank accounts, separate statement showing sources and applications of funds for the purchase and construction of new house property and also the details as to his profession that he was a partner of a Chartered Accountant firm placed at Chennai and he is not involved in any other activities. He enclosed the audited income and expenditure account, Balance Sheet, partners capital accounts and current accounts, computation of total income and ITR-V of the said firm and stated that these details will explain the remuneration drawn by him from the firm during the year and his share of profit from the firm and the transactions through his capital account and current account. With regard to the 26AS statement, fee receipts from Brakes India Ltd. and Turbo Energy Ltd. and the TDS recoveries were shown to have been reflected in the statement and detailed explanation had been given. Thereafter, the assessee has explained about the sale proceeds received fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five occasions, the case has been discussed by the Assessing Officer with the assessee and on each occasion, the assessee has cooperated and furnished details. There is no allegation that the details were either inadequate or not fully or truly furnished or the facts or figures were distorted. Thus, the Assessing Officer, having been satisfied, has completed the assessment under Section 143(3) of the Act. 20.The Revenue would point out that the Assessment Order is a brief order, which does not elaborately set out the discussion. Undoubtedly, the Assessing Officer is not a Court or judicially trained officer to write a judgment. The details called for by him, pursuant to the notice under Section 142(1), and the response of the assessee to all the queries, have to be taken note of and those details also should be read along with the Assessment Order, dated 20.01.2014, and if it is done so, then it cannot be said that the assessment under Section 143(3) was without due application of mind. 21.In the reasons for reopening, dated 07.05.2018, all the materials which were subject matter of scrutiny assessment have been verbatim taken up on the alleged ground of reopening. That apart, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... false. The details in this regard have also been furnished in the rejoinder affidavit in Para No.18. Likewise, the averments in Para Nos.19 and 20 of the counter affidavit have also been denied and it was pointed out that the assessee had submitted copies of the Bank statements, as well as documents evidencing the sale and purchase of the property, and all the transactions were duly routed through the Bank and the statement of accounts were furnished and examined by the Assessing Officer and it cannot be stated that those aspects were neither called for nor examined. These averments were never tested by the learned Writ Court for its correctness, but the learned Writ Court solely relied on the averments in the counter affidavit, which have been controverted and denied by the assessee, by giving full particulars. 24.Thus, we are of the view that the reopening of assessment was a clear case of change of opinion and what the Assessing Officer attempted was to review the scrutiny assessment, which is impermissible in law. 25.For all the above reasons, the Writ Appeal is allowed and the order passed in the writ petition is set aside. Consequently, the writ petition is allowed and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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