TMI Blog2021 (9) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... ent have been verbatim taken up on the alleged ground of reopening. That apart, these materials were culled out from the records, relating to the assessee, which are stated to be miscellaneous records. In any event, they are part of the assessment records and in the absence of any contention that the income chargeable to tax has escaped assessment on account of the reason of failure on the part of the assessee to disclose fully and truly all material facts, if a reopening is done, it would clearly amount to a case of change of opinion and a review of the earlier Assessment Order, which is impermissible in law. Assessee had rebutted the averments in Para No.18 of the counter affidavit, by giving full details regarding the professional receipts and that the credit of TDS on those credits was claimed in the hands of assessee, was absolutely 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 proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 following three observations were found : i. AIR 26AS-194 J omitted ii. Excess Investment Unexplained iii. Investment in pursuance of House Property Thus, the Assessing Officer stated that he has reasons to believe that income chargeable to tax has escaped assessment within the meaning of Section 147 of the Act and that the assessee has failed to disclose fully and truly all material facts necessary for the assessment for the relevant Assessment Year. 6.The assessee objected to the reopening vide letter dated 12.05.2018, stating that the case was taken up for detailed scrutiny and after full fledged hearing, the Assessing Officer was satisfied with the explanation offered and the assessment was completed and the present reopening is a clear case of change of opinion. Various other factual details with regard to the sale of house property were also mentioned. The assessee placed reliance on the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 to 20, however, we find that the rejoinder filed by the assessee to these averments made in the counter affidavit have not been taken note of. Thereafter, the Court proceeds to hold that, when there are certain discrepancies with reference to information provided and the Assessing Officer has reason to believe that certain information were not furnished truly and fully in respect of the information provided at the time of assessment, the authority is empowered to reopen the proceedings. The further observations made in Para No.16 of the impugned order are all observations pertaining to the scope of Section 147 and explanation contained thereunder, and nothing pertaining to the assessee's case. 11.Thus, we can safely conclude that the learned Single Bench had dismissed the writ petition largely due to the stand taken by the Assessing Officer in his counter affidavit in Para Nos.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 scrutiny assessment under Section 143(3) was a limited scrutiny and the issue which he has pointed out has never been the subject matter of the scrutiny assessment. The learned Standing Counsel, to support such contention, has referred to the official records, which is a data-sheet maintained by the Department, where the details of the case of the assessee and the reasons for scrutiny selection had been mentioned, and pointing out to Column No.8 of the details, it is submitted that the type of scrutiny was limited and therefore, the issues pointed out in the reasons, dated 07.05.2018, were not subject matter of the scrutiny assessment under Section 143(3) of the Act. 15.There is nothing on record to show that the scrutiny assessment was a limited scrutiny and duly intimated to the assessee accordingly. This is clear from the Annexure to the notice issued to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit 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 from the sale of a car and other details concerning the purchase of a new car, which has been duly accounted by the partnership firm. The assessee also enclosed the copies of the housing loan statement of account of SBI, as well as India Bulls Housing Finance Ltd., in support of his claim for deduction for housing loan interest against the income from property. The assessee had disclosed the particulars relating to the loan and the property which it pertains to. The assessee, therefore, earnestly hoped that the details and documents enclosed will meet the requirements and queries raised by the Assessing Officer and requested him to complete the assessment at the earliest convenience. 17.The learned counsel for the appellant has drawn the attention of this Court to all the details and statements, which were pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, these materials were culled out from the records, relating to the assessee, which are stated to be miscellaneous records. In any event, they are part of the assessment records and in the absence of any contention that the income chargeable to tax has escaped assessment on account of the reason of failure on the part of the assessee to disclose fully and truly all material facts, if a reopening is done, it would clearly amount to a case of change of opinion and a review of the earlier Assessment Order, which is impermissible in law. 22.The argument of the learned Senior Standing Counsel is to read Section 149(1)(b) along with the first proviso to Section 147. These provisions are referred to support the argument that the Assessing Officer is entitled to make the assessment in the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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