TMI Blog2023 (5) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... close material facts fully and truly. It is not in dispute that by the letter the Petitioner have submitted all the particulars along with supporting documents to the Respondent No. 1. Hence the reasons to believe and a presumption based on the statement of Shri Bhanwarlal Jain (a third party) in the course of a search, that the loans of the entities were bogus or accommodation entries was clearly dispelled. Moreover, the specific provisions of S. 153C would prevail over the general provisions of section 147 in the case of search on 3rd party. Once the Petitioner provided the bank statements and details of parties as sought for, the AO must necessarily carefully examine the material and then give particulars and reason/s to believe other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of information is also not disclosed.AO has acted in excess of the limit of his jurisdiction to reopen the assessment in the exercise of powers under section 147 read with section 148 - Decided in favour of assessee. - WRIT PETITION NO. 783 of 2016 - - - Dated:- 4-5-2023 - DHIRAJ SINGH THAKUR AND KAMAL KHATA, JJ. For the Petitioner : Ms. Rucha Vaidya a/w. Mr. Mihir Naniwadekar and Mr. Sameer Dalal. For the Respondents : Mr. Suresh Kumar. JUDGMENT [PER: KAMAL KHATA, J.] 1. This Petition under Article 226 of the Constitution of India challenges the notice under section (u/s) 148 of the Income-tax Act, 1961 ( Act ) dated 9th March 2015 issued by Respondent No.1 for reopening of assessment for assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing beyond 4 years was found, (d) re-opening was based on mere change of opinion, (e) information, which was the basis for, reasons recorded was not made available, (f) the case of M/s Rushabh Enterprises in Writ Petition No. 167/2015, part of the same group, with similar facts and reasons, be considered. 5. Respondent No.1 selectively reproduced and dealt with the objections whilst passing an order dated 21st January 2016, rejecting objections. 6. Petitioner has, therefore filed the present Petition, challenging impugned notice and impugned order issued by Respondent No.1. 7. Respondent No. 1 in its reply stated that the Petitioner has failed to fully and truly disclose material facts in the original assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic provisions of S. 153C would prevail over the general provisions of section 147 in the case of search on 3rd party. 10. In our view, once the Petitioner provided the bank statements and details of parties as sought for, the AO must necessarily carefully examine the material and then give particulars and reason/s to believe otherwise, whilst rejecting the objections, more so, when there is an assessment order u/s 143(3). This process would be in tune with the principles of shifting of onus under the evidence act. The Supreme Court in Lakhmani Mewal Das 103 ITR 437 has held that: The expression reason to believe does not mean a purely subjective satisfaction on the part of the Income-tax officer. The reason must be held in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of AO the reopening was not justified. It is also held that where primary facts necessary for assessment are fully and truly disclosed the AO is not entitled to reopen the assessment on a change of opinion. It is held that while considering the material on record, one view is conclusively taken by AO, it would not be open for the AO to reopen the assessment based on the very same material and take another view. 13. In the present case, a perusal of the reasons recorded by Respondent No. 1, indicate that, the Respondent No. 1 has relied upon facts and figures on the record; and the queries were answered and particulars were provided vide letter dated 11th September 2015 is also not disputed. This Court in the case of Nickunj Eximp Enter ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
