TaxTMI 
TaxTMI 
2008 (10) TMI 327
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....d under the Act. 3. Briefly stated, the facts of the case are that the petitioner, which is a limited company, filed its original return of income on October 24, 2001, declaring therein, a total income of Rs. 18,26,66,410. On February 23, 2004, the assessment was framed under section 143(3) of the Act. On March 31, 2008, the Assessing Officer issued the impugned notice under section 148 of the Act for reopening the assessment for the assessment year 2001-02. The petitioner, vide communication dated April 24, 2008, addressed to the respondent-Assessing Officer, requested him to treat the original return as return filed under section 148 of the Act with a further request to be sup plied with a copy of the reasons recorded, for recq5ening the assessment, as well as a copy of the approval required, for the purpose of initiation of reopening proceedings. By letter dated April 28, 2008, the respondent supplied the copy of the reasons recorded for reopening the assessment. As per the reasons recorded, the assessment has been reopened on the ground that the petitioner has shown long-term capital gains of Rs. 1,09,47,296 under the head "Capital gains" and has wrongly been assessed at a l....
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.... Officer and the relevant documents and submissions, which were placed on record by the peti boner, were considered and thus all the primary facts having been placed for consideration on the record, the impugned notice is patently illegal and the petition deserves to be allowed. In supportof these submissions, reli ance has been placed upon Krishna Metal Industries v. H. M. Alogotar [1997] 225 ITR 853 (Guj) and Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191; AIR 1961 SC 372. 5. Mr. Manish R. Bhatt, learned senior counsel for the respondent, has submitted that the petition has been filed at a premature stage, inasmuch as only a notice under section 148 of the Act has been issued and if the petitioner is aggrieved by the reassessment order, he can avail of the appellate remedy. It is further submitted that the impugned notice has been rightly issued and the reasons recorded in the order disposing of the objections preferred by the petitioner would demonstrate that the proviso to section 147 of the Act has been rightly invoked, as the petitioner did not disclose the details and other related facts, as enumerated therein. It is urged that in view of the above submissions, the p....
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....t the communication dated April 28, 2008, nowhere states that the petitioner-assessee has failed to disclose fully and truly, all material facts necessary for assessment for the relevant assessment year. There is not a whisper to this effect in the letter dated April 28, 2008, and this is not one of the reasons mentioned for reopening the assessment for the relevant assessment year. On the contrary, the reasons recorded say this income has wrongly been assessed under the head Capital gains" which should have been assessed under the head "Profits and gains of business or profession". Thus, in fact, not only there is no failure on the part of the assessee even alleged, but it is accepted that an incorrect assessment is framed due to an error on the part of the Assessing Officer. In the case of Parashuram Pottery Works Co. Ltd. V. ITO [1977] 106 ITR 1 the Supreme Court has stated (page 10): "It has been said that the taxes are the price that we pay for civilization. If so, it is essential that those who are entrusted with the task of calculating and realising that price should familiarise them selves with the relevant provisions and become well-versed with the law on the subj....
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....rue disclosure of all material particulars relating to the assessment year under consideration. This, clearly, is nothing but an attempt to supplement and improve upon the reasons recorded as reproduced in the letter dated April 28, 2008, by adding something which is not recorded initially. 11. We find from the material on record, that the petitioner has made a full disclosure of material facts in the return of income filed by him for the relevant assessment year, which is accompanied with several enclosures, including enclosure B in which a summary of short-term and long-term capital gains has been disclosed meticulously, and item-wise. The enclosure runs into as many as seven pages and the schedule attached to the balance-sheet also provides details of the investments, purchases and sales during the relevant year. We, therefore, find that all primary facts have been disclosed by the petitioner at the time of filing his return of income. In Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191 ; AIR 1961 SC 372, the Supreme Court has held as under (page 202 of 41 ITR): "It is the duty of the assessee to disclose all the facts which have a bearing on the question; but whe....