TMI Blog1997 (3) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... es under section 148 on 19-11-1987. All the assessments were completed under section 143(3) read with section 147 on 4-2-1988. In the re-assessment, the amounts of interest credited to the suspense accounts were added back. 2. In the first appeals, the CIT(Appeals) held that the pronouncement by the Supreme Court will certainly have to be treated as an information for taking action under section 147(a) of the Act, as the Supreme Court formulates the law of the land. Accordingly, he held that the action of the Assessing Officer in initiating proceedings under section 147(a) was valid. The CIT(Appeals) thus upheld the reassessments for all the years. 3. The assessee has come up in further appeals before us. It has candidly been admitted by the learned counsel for the assessee appearing before us that on merits, the assessee does not have any case inasmuch as in accordance with the abovementioned judgment of the Supreme Court, the amounts of interest credited to the suspense accounts are liable to be treated as income accruing to the assessee. For assessment years 1983-84 and 1984-85 again, the learned counsel for the assessee has admitted that by using the abovementioned judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee is to disclose only primary facts and not inferential facts. If some material for the assessment lay embedded in the evidence which the Revenue could have uncovered but did not, then it is the duty of the assessee to bring it to the notice of the assessing authority. The assessee known all the material and relevant facts--the assessing authority might not. In respect of the failure to disclose, the omission to disclose may be deliberate or in advertent. That is immaterial. But if there is omission to disclose material facts, then, subject to other conditions, jurisdiction to reopen is attracted." Thereafter the learned DR has also tried to rely on another judgment of the Supreme Court in the case of CIT v. A. Raman Co. [1968] 67 ITR 11 but inasmuch as this particular judgment relates to reopening of proceeding under section 147(b), we are not taking into consideration this particular judgment. The learned counsel for the assessee has, on the other hand, strongly contended that all the primary facts necessary for making the assessment were there before the Assessing Officer. It is also stated that the Department was very much in knowledge of the fact that the assessee-ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of completing the original assessment. Merely because the figure was not supplied to the Assessing Officer, it cannot be said that the assessee did not come up with all relevant facts material for the assessment. Since the original assessment had been completed under section 143(3), the Assessing Officer could have very well asked for the relevant details during the course of the said original assessment proceedings. On the other hand, it appears that at the stage of the original assessment, the Assessing Officer was satisfied that the amount credited to interest suspense account was not taxable in view of the order of the Karnataka High Court for assessment year 1973-74 as referred to above. The judgment of the Supreme Court in the case of State Bank of Travancore, therefore, can be considered merely to constitute an information to the Assessing Officer about assessability of such income. Hence, we are of the opinion that on account of the fact that the assessee had disclosed all the primary facts relevant for the assessment, the Assessing Officer did not have jurisdiction to reopen the assessment for assessment year 1982-83 under section 147(a). The reopening of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to a jurisdiction under which it would be nugatory. The Madras High Court held in its decision as VR.C.RM. Adaikkappa Chettiar's case as below : " A wrong reference to the power under which an order is made does not per se vitiate the order if there is some other power under which the order could lawfully be made. The validity of the impugned order has to be tested by reference to the question whether the Income-tax Officer had any power at all to make an order of this nature. If the power is otherwise established, the fact that the source of power has been incorrectly described would not make the order invalid." However interesting the argument put forward by the learned DR may be, we are unable to agree with it. All the decisions as referred to by him relate to matters where the Assessing Officer has purported to exercise his powers under a particular section but has mentioned a wrong section. The Courts have never held that two powers of completely different nature are to be equated and that if the Assessing Officer patently acts under the powers granted to him under a particular section and if it be found that such powers are not available to him under that section, hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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