TMI Blog2023 (2) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... as any such failure on the part of the assessee. The consequence is clear that the AO had not satisfied himself on this important jurisdictional aspect and therefore must be deemed to have arbitrarily proceeded to initiate the reassessment proceedings by issuing the notice impugned, which makes it unsustainable. Material which was referred to in the reasons recorded in the shape of transactions, securities, etc. do not reflect that the said material was not available with the AO during the scrutiny assessment proceedings. AO appears to have relied solely upon the said information obtained from the Investigation Wing of the department without, in the least, verifying as to whether the said issue had been gone into or disclosed by the assessee during the scrutiny assessment proceedings. The petitioner, on the other hand, has placed on record details of notices and the replies submitted thereto, as referred to in the preceding paragraphs which would show that the information with regard to all transactions had been sought for and supplied by the petitioner. Since an order under section 143(3) had been passed after eliciting various information from the petitioner, which was resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner was selected for scrutiny assessment by issuing notice under section 143(2) of the Act, dated 28th August 2015. 2.4. By virtue of notice dated 7th July 2016 under section 142(1) of the Act, the petitioner was asked to give details of the business activity and file the basic documents like computation of income, audit reports etc. which details, the petitioner claims were provided vide letter dated 22nd August 2016. 3. By virtue of notice under section 142(1) of the Act, dated 7th November 2016, the petitioner was asked to inter-alia file the following details : (i) Reconciliation of TDS claimed as per certificates and the income offered in the Profit and loss account. (ii) Statement reflecting separately, trading account of delivery based/non-delivery based share transactions and derivative transactions (iii) Complete details of STT along with the return. (iv) Details of the information received through AIR and the corresponding bank entries and sources/utilization thereof. Vide communication dated 21st November 2016, the petitioner states that a response was filed giving the relevant details. Vide communication dated 2nd December 2016, details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the above facts and after due application of mind after analyzing all the relevant information in the case of the assessee in totality, I have reason to believe that income of Rs.4786.01/-Lakh has escaped assessment for A.Y.2014-15 and the same is therefore required to be reopened for scrutiny assessment. A notice u/s.148 r.w.s. 147, is, therefore, being proposed to be issued to assessee such income and also any other income chargeable to tax which has escaped assessment which comes to notice subsequently in the course of the assessment proceedings. 5. Objections were filed on 30th December 2021 to the reopening which were rejected by virtue of order dated 8th February 2022. 6. Learned Senior Counsel for the petitioner challenges the reassessment proceedings on the ground that the jurisdictional requirement for reopening had not been satisfied in the present case. It was urged that the Assessing Officer having failed to state in the reasons recorded that there was any failure on the part of the assessee to disclose fully and truly the material facts necessary for assessment, could not have proceeded to reopen the assessment. This, it was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, Assistant Commissioner of Income-Tax and Ors. 2004 ITR 332 Vol.268., it was held : ...The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded must disclose his mind. The reasons are the manifestation of the mind of the Assessing Officer. The reasons recorded should be self-explanatory and should not keep the assessee guessing for the reasons. Reasons provide the link between conclusion and evidence. The reasons recorded must be based on evidence. The Assessing Officer, in the event of challenge to the reasons, must be able to justify the same based on material available on record. He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish the vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. 14. This Court in the aforementioned judgment proceeded to allow the petition and set aside the notice impugned therein only on this ground that the jurisdictional requirement of proviso to Section 147 of the Act ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y requirement is that the Assessing Officer ought to have considered the objection now raised in the grounds for issuing notice under Section 148 of the Act, during the original assessment proceedings. There can be no doubt in the present facts as evidenced by a letter dated 8 September 2012 the very issue of taxability of sale of shares under the head capital gain or the head Profits and gains from business was a subject matter of consideration by the Assessing Officer during the original assessment proceedings leading to an order dated 12 October 2010. It would therefore, follow that the reopening of the assessment by impugned notice dated 28 March 2013 is merely on the basis of change of opinion of the Assessing Officer from that held earlier during the course of assessment proceeding leading to the order dated 12 October 2010. This change of opinion does not constitute justification and/ or reasons to believe that income chargeable to tax has escaped assessment. 17. Since an order under section 143(3) had been passed after eliciting various information from the petitioner, which was responded to by the petitioner, it must be presumed that the Assessing Officer, while pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
