TMI Blog2021 (12) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... T B. BORKAR, JJ. Mr. Nitesh Joshi with Mr. Arun Siwach and Ms. Prachi Vasudeo i/b Cyril Amarchand Mangaldas for Petitioner. Mr. Suresh Kumar for Respondent. JUDGMENT: (Per K. R. Shriram, J.) Petitioner is impugning notice dated 28/3/2005 received by respondent No.1 under Section 148 of the Income Tax Act seeking reopening of the assessment for the Assessment Year 1998-1999 and the consequential order dated 10/11/2005 received by respondent No.1 under section 143(2) of the Act and the order dated 28/2/2006. 2. Petitioner is a Company engaged in the business of manufacture and sale of non-alcoholic beverage bases and beverages made out of such bases. With a view to reorganize its business so as to achieve certain comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been demerged with effect from 30/11/1997. On 8/3/2001 petitioner provided to respondent No.1 Balance Sheet and the Profit and Loss Account as on 30/11/1997. 4. Respondent No.1 passed assessment order dated 30/3/2001 under section 143 (3) of the Act in which respondent No.1 computed total income of petitioner as Nil after setting off earlier year's losses to the extent of ₹ 22,42,75,013/- Aggrieved by the disallowances made by respondent No.1, petitioner filed an appeal before the Commissioner of Income Tax (Appeals), Pune. By an order dated 14/8/2003, respondent No.2 had issued a show cause notice under Section 263 of the Act and on 28/3/2003 set aside the assessment order passed on 30/3/2001 and directed respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se fully and truly all material facts necessary for its assessment for the relevant assessment year, it will not be fatal to the assumption of jurisdiction under Sections 147 and 148 of the Act. We would certainly agree with Mr. Suresh Kumar but as held in Crompton Greaves Ltd. (Supra), this is subject to the rider that there must be cogent and clear indication in the reasons supplied, that in fact there was failure on the part of the assessee to disclose fully and truly all the material facts necessary for its assessment. If the factum of failure to disclose can be culled down from the reasons in support of the notice seeking to reopen assessment, that will certainly not be fatal to the assumption of jurisdiction under Sections 147 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year concerned (hereinafter in this section and in sections 148 to 153 referred to as the relevant assessment year) : Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing officer nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year. It is needless to mention that the reasons are required to be read as they were recorded by the Assessing Officer. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn based on reasons not recorded. It is for the Assessing Officer to disclose and open his mind through reasons recorded by him. He has to speak through his reasons. It is for the Assessing Officer to reach to the conclusion as to whether there was failure on the part of the assessee to disclose fully and truly all material fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996-97 and does not comply with the requirements of proviso to section 147 of the Act, the Assessing Officer had no jurisdiction to reopen the assessment proceedings which were concluded on the basis of assessment under section 143(3) of the Act. On this short count alone the impugned notice is liable to be quashed and set aside. 9. In the circumstances, the impugned notice dated 28/3/2005 is quashed and set aside and consequential order dated 20/2/2006 is also set aside. Rule is made absolute in terms of prayer clause (a) which reads as under: (a) this Hon'ble Court may be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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