TMI Blog2023 (7) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... orbed depreciation was also considered while passing the assessment order u/s 143(3) - AO had in his possession all primary facts and it was for him to draw proper inference as to whether the brought forward unabsorbed depreciation should be adjusted against capital gains or profit and gains from business or profession. There was nothing more to disclose and a person cannot be said to have omitted or failed to disclose something when, of such thing, he had no knowledge. We are satisfied that petitioner had truly and fully disclosed all material facts necessary for the purpose of assessment. Not only material facts were disclosed by petitioner truly and fully but they were carefully scrutinized and the figures of income as well as deducti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AY 1998-99 18,64,85,685 AY 1999-00 54,33,63,761 AY 2000-01 44,71,61,394 117,70,10,840 Less Set off of business losses AY 2001-02 55,85,92,862 AY 2002-03 31,85,99,070 87,71,91,932 Business Income Nil 3. By an assessment order dated 16th November 2009 passed under Section 143(3) of the Act, respondent no.2 assessed the inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03-04 2,31,05,477 117,70,10,840 Balance Capital Gain Nil 4. Thereafter, petitioner received the impugned notice dated 26th April 2011. In response to petitioner s request and filing of returns, petitioner was provided with the reasons for re-opening. The reasons for re-opening read as under : Reasons for initiating proceedings u/s 147 of the IT Act During the year under consideration, the assessee is having income from business and short term capital gains. In this case, assessment u/s 143 (3) of the IT Act was completed on 16.11.2009, assessing the total income at Rs. Nil after adjustment of brought forward unabsorbed depreciation of Rs .9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the notice having been issued more than four years after the expiry 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 assessee to disclose fully and truly all material facts necessary for his assessment, for that assessment year, the notice issued would be without jurisdiction. 7. Mr. Sanghavi submitted that there is nothing in the reasons to believe, as quoted above, to indicate that there was any failure to disclose. Mr. Sanghavi also submitted that even in the affidavit in reply opposing the petition, infact, there is an admission that petitioner had disclosed unabsorbed depreciation for Assessment Year 2000-2001 and 2001-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has escaped assessment. Paragraph 10 of the affidavit in reply also reads as under : 10. I submit that the Assessing Officer, in original assessment proceedings, failed to take into account that brought forward unabsorbed depreciation of Rs. 80,36,05,717/- for the A/Y 2000-2001 and A/y 2001-2002 could not have been adjusted against income from capital gains for A/y 2006 2007. The claim of the Petitioner of set-off of unabsorbed depreciation for the A/Y 2000-2001 and A/y 2001-2002 against income from capital gains for A/y 2006-2007 is a false claim made in the Return of Income and would amount to failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for A/y 2006- 2007. 10. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the judgment reads as under : .......... In the case before us the assessee did not disclose the transactions evidenced by the drafts which the Income- Tax Officer discovered. After this discovery the Income-tax Officer had in his possession all the primary facts, and it was for him to make necessary enquiries and draw proper inferences as to whether the amounts invested in the purchase of the drafts could be treated as part of the total income of the assessee during the relevant year. This the Income-tax officer did not do. It was plainly a case of oversight, and it cannot be said that the income chargeable to tax for the relevant assessment year had escaped assessment by reason of the omission or failure on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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