9911796707
TMI Blog2008 (8) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... s impugning the notice dated 28.03.2007 under Section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the said Act") and the order dated 17.10.2007 disposing of the objections to the initiation of re-assessment proceedings. The petitioner is seeking the quashing of the said notice and the said order as also the entire re-assessment proceedings initiated pursuant to the said notice. 3. The petitioner had filed its return for the assessment year 2000-01 on 30.11.2000. Thereafter, the assessee's case was picked up for scrutiny and a notice under Section 143(2) of the said Act was issued on 27.11.2001. It is material to note that in the course of the assessment proceedings, the Assessing Officer issued three notices to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aspect of loss on account of exchange rate fluctuation, it is apparent that the Assessing Officer, through the said notice dated 10.01.2002, required the petitioner to furnish details in respect thereof, which the petitioner did by virtue of its reply dated 05.02.2002. The only sentence that appears in the assessment order is that the assessee company is engaged in the business of import and export trading and real estate. The assessment order also notes that the Assessing Officer had gone through the details filed and the balance sheet and the profit and loss account and thereafter he computed the total income. As noted above, while there is no specific mention about the loss on account of foreign exchange fluctuation, it can be easily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Ministry of Law clarified that exchange loss arrived at on the basis of fluctuation is the rate of exchange not locked [(sic) backed] by actual remittance can not be allowed as deduction in computing the income and the above amount is not allowable expenditure as it was not locked [(sic) backed] by actual remittance. The loss on account of Foreign Exchange Fluctuation was not established, the income has escaped assessment with in the meaning of section 147. I have therefore, reason to believe, that the 10,69,996/- has escaped assessment. (Dalip Singh) Income tax Officer, Ward-18(3), New Delhi" 6. The learned counsel for the petitioner submitted that the invocation of Section 147 of the said Act itself is without juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded, it is very clear that the office note is not the reason for reopening the assessment and that the actual reason for reopening the assessment is the clarification issued by the Ministry of Law with regard to non-allowability of exchange fluctuation loss not backed by actual remittance. 8. Mr Jolly, who appeared on behalf of the respondents, submitted that the provisions of Section 149(1)(b) ought to be taken note of inasmuch as the said provision permits the Assessing Officer to reopen assessments beyond four years upto six years. He also submitted that since the Assessing Officer had not formed any opinion with regard to exchange fluctuation loss in the original assessment order, it was also not a case which could be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn under Section 139 etc. or by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, for that assessment year. In the present case, the question of making of a return is not in issue and the only question is with regard to the second portion of the proviso, which relates to failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. Insofar as this pre-condition is concerned, there is not a whisper of it in the reasons recorded by the Assessing Officer. In fact, as indicated above, the Assessing Officer could not have made this a ground because the Assessing Officer had required the petitioner to furnish details with regar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
