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TMI Blog2022 (3) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... heard out the main writ petition owing to the narrow compass on which the captioned main matter turns. 3. Short facts shorn of elaboration or in other words, facts that are imperative for appreciating this order are that the writ petitioner filed return of income qua said AY on 25.09.2014 under Section 139(1) of IT Act; that the original assessment order (based on such return) was made by the Assessing Officer vide an order dated 22.12.2016; that thereafter the impugned notice under Section 148 of IT Act came to be issued; that impugned notice reverted the matter to the earlier part of Chapter XIV of IT Act and therefore a notice dated 23.11.2021 being a notice under Section 142(1) of IT Act with an annexure came to be issued; that the writ petitioner on 07.12.2021 filed return of income in response to the impugned notice; that the writ petitioner also sent in its electronic response on 13.12.2021; that a speaking order came to be made by the first respondent on 24.12.2021; that another notice under Section 142(1) of IT Act came to be issued by the first respondent for continuing the reassessment; that the writ petitioner uploaded an e-response on 04.01.2022 inter alia seeking to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m; c) the assumption of jurisdiction under Section 148 of IT Act by the second respondent is not bad and the same is sustainable in the light of the reasons adumbrated in the annexure to the notice dated 23.11.2021 made under Section 142(1) of the IT Act. 8. Learned Revenue Counsel also pressed into service two case laws and the same will be discussed elsewhere infra in the latter part of this order. 9. In response to the submissions of learned Revenue Counsel by way of reply, learned counsel for writ petitioner reiterated the submissions made in his opening arguments. 10. This Court now embarks upon the exercise of discussion and dispositive reasoning qua the points that have been urged in the hearing. 11. The arguments predicated on non-availability of tangible material, in the considered view of this Court does not really hold water at this stage in a challenge to a notice under Section 148 of IT Act in the light of the annexure to Section 142(1) dated 23.11.2021, a scanned reproduction of which is as follows: 12. Before proceeding further, though several case laws have been annexed to the paper book, learned counsel made it clear that he is not relying on Kelvinator Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions of fact. This supports the first argument raised by learned Revenue Counsel which has been captured supra. 13. Before proceeding further, this Court makes it clear that in discussing the case laws supra, the law declared by a Constitution Bench of Hon'ble Supreme Court in the celebrated and oft quoted Padma Sundara Rao case [Padma Sundara Rao Vs. State of Tamil Nadu reported in (2002) 3 SCC 533] has been respectfully followed and the relevant paragraph in Padma Sundara Rao case law is paragraph 9 and the same reads as follows: '9.Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington Vs. British Railways Board (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.' 14. To be fair to the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o disclose fully and truly all material facts.' 16. In the case on hand, this Court finds that the facts in Honda Siel Power Products have similarity qua case on hand as the reasons recorded by the Assessing Officer for reopening assessment as captured in paragraph 5 are as follows: '5.The reasons recorded by the assessing officer for reopening of assessment for Assessment Year 2000 - 2001 are as under : 'The assessee company filed return of income on 30.11.2000 declaring income of Rs. 14,35,73,320. Assessment in this case was completed under Section 143 (3) at an income of Rs. 15,73,66,280. It has come to the notice that as per Clause 20 of Form 3CD, the profit amounting to Rs. 107.70 lakhs has been shown in Annexure VIII under Section 41 of the Income Tax Act, 1961. Out of this, the assessee has credited a sum of Rs. 9.23 lakhs on account of provision for warranties no longer required written back under the head 'Other Income' in the P & L Account leaving a balance of Rs. 98.46 lakhs which has not been shown under the head 'Other Income'. Therefore, this amount of Rs. 98.46 lakhs has not been offered for taxation by the assessee and the income o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o express any opinion on this view of another Hon'ble Single Judge as the facts in M/s.SUN Direct TV Private Ltd case are very different as that is a case where the Assessing Officer had not disclosed the details qua share premium being derived. The facts being different, this Court deems it appropriate to leave it at that. 18. This takes us to the argument on limitation. This was predicated on first proviso to Section 147 of IT Act, which reads as follows: Section 147: Income escaping assessment: ...... 'Provided that where an assessment under sub-section (3) of section 143or 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:' A careful perusal of the first proviso makes it c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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