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TMI Blog2021 (12) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... this case credible information received vide letter bearing No.DDIT(Inv)/Unit-6(3)/Information/2018-19 dated 30.03.2019 has been received in this office on 31.03.2019 by email at 05:47 PM, from Dy. Director of Income Tax (Inv.)-6(3), Mumbai wherein it is stated that "the suspect person have defrauded the Maharashtra Government by preparing fabricated/bogus documents and used them as genuine documents. The accused persons especially the public servants by misusing their designation under criminal conspiracy committed acts like to cheat government and to cause financial loss and to gain the developer M/s. K.S. Chamankar Enterprises". It is also mentioned that accused mentioned has in criminal conspiracy misrepresented the facts to the Govt and dishonestly got the plot for the building of State Central Library on BOT basis allocated to M/s.India Bull Real Tech Limited. 3. In view of the above facts, I have reasons to believe that income to the extent of more than Rs. 1,00,000/- chargeable to tax has escaped assessment for A.Y. 2012-13. Accordingly, the proceedings u/s. 147 of the Income Tax Act, 1961 are duly attracted in order to frame proper assessment to bring to tax appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be exercised casually, in a routine and perfunctory manner. Mr. Gopal relying on another judgment of this court in Principal Commissioner of Income-tax 5 vs. Shodiman Investments (P) Ltd. [2018] 93 taxmann.com 153 (Bombay) submitted that notice has to be set aside because the reasons recorded even does not indicate the amount which according to the Assessment Officer has escaped assessment. 7. Mr. Walve submitted that petitioner never had any problem when he received notice dated 31st March, 2019 or when he received the reasons for re-opening or when the objections filed were rejected by the order dated 17th October, 2019. Mr. Walve submitted that even if the objections were rejected, petitioner participated in the assessment proceedings and made submissions and filed documents vide letter dated 5th November, 2019 in compliance with notice issued under Section 148(1) of the Act. But petitioner suddenly woke up and decided to challenge the notice issued under Section 148 of the Act itself when petitioner received Show Cause Notice dated 11th December, 2019 as to why the amount of Rs. 3,13,00,000/- should not be added to the income under Section 69A of the Act. Having parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to s. 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, Parliament not only deleted the words "reason to believe" but also inserted the word "opinion" in s. 147 of the Act. However, on receipt of representations from the companies against omission of the words "reason to believe", Parliament re-introduced the said expression and deleted the word "opinion" on the ground that it would vest arbitrary powers in the Assessing Officer". (emphasis supplied). In Export Credit Guarantee Corporation of India Ltd. vs. Additional Commissioner of Income Tax and Ors. [2013] 350 ITR 651 (Bom) the court held The Assessing Officer even within a period of four years cannot reopen an assessment merely on the basis of a change of opinion. The Assessing Officer has no power to review an assessment which has been concluded. But where he has tangible material to come to the conclusion that there is an escapement of income from assessment, the power to reopen can be exercised. The expression "reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g which is not illusory, hypothetical or a matter of conjecture. Something which is tangible need not be something which is new. An Assessing Officer who has plainly ignored relevant material in arriving at an assessment acts contrary to law. If there is an escapement of income in consequence, the jurisdictional requirement of Section 147 would be fulfilled on the formation of a reason to believe that income has escaped assessment. The reopening of the assessment within a period of four years is in these circumstances within jurisdiction. (emphasis supplied) 10. Therefore, the test to be applied is whether there was reason to believe that income had escaped assessment and whether the Assessing Officer has tangible material before him for the formation of that belief. Once tangible basis has been disclosed for re-opening the assessment, it would not be appropriate for this court to prevent an enquiry whatsoever by the Assessing Officer. In this case, the reasons indeed disclose what is that tangible material. 11. As regards the judgment of this court in German Remedies Ltd. (supra), relied upon by Mr. Gopal, we certainly agree with Mr. Gopal that the power vested in the commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the impugned notice. This is particularly so as the question of jurisdiction has been raised by the petitioners before the Assessing Officer during the assessment proceedings under the Act. In the present facts, the petitioners have participated in the proceedings before the Assessing Officer. The objections to the reasons recorded by the Assessing Officer in support of the impugned notice during the assessment proceedings is to point out to him the reassessment proceedings are bad as the requirement of Sections 147 and 148 of the Act are not satisfied. It would be completely different scenario where the petitioners have not participated in the proceedings before the Assessing Officer and object to exercise of jurisdiction by the Assessing Officer at the very threshold and not while participating in the reassessment proceedings. In such cases, it is not a case of a party seeking identical relief by two parallel modes. The orders passed by the Assessing Officer are subject to effective, efficacious alternative remedy under the Act. Therefore, we see no reason to exercise our extra-ordinary jurisdiction in the facts of this case. 14. In the circumstances, we do not see any re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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