TaxTMI 
TaxTMI 
2011 (6) TMI 138
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.... Petitioner filed a Return of Income for the assessment year 1997 along with the duly audited Accounts Tax Audit Report, etc. in respect of its income from the manufacturing fabrication and servicing of components. After the assessment, the Petitioner's income for the said year was assessed by an Order under Section 143(3) of the Act on 29-12-1999. An appeal against that was decided on 31-7-2000 by the Commissioner of Income Tax of Appeals. 2. Thereafter, on 18-3-2004 the Respondents issued the impugned notice for re-opening of assessment under Section 147 of the Act. The Petitioner replied to the said notice and demanded reasons for invoking Section 147 of the Income Tax Act. In response to the demand, the Respondents have sought....
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....on of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under subsection (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: [Provided further that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject-matter of any appeal, reference or revision, which is chargeable to tax and has escaped assessment]. Explanation 1: Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amo....
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....issued under sub-section (1) of Section 142 or Section 148 or (c) to disclose fully and truly all material facts necessary for that assessment year. Since the first two conditions are not pleaded by the Respondents, it is the submission of the Petitioner that the notice is wholly unwarranted and invalid since there is no allegation whatsoever that the Petitioner has failed to disclose all material facts necessary for assessment. This submission can be considered only with reference to the reasons put forth by the Respondents for issuing the notice. The letter dated 27-1-2005, interalia, states that the Assessment Officer has reasons to believe that income has escaped assessment because the Petitioner has wrongly claimed deduction under Sect....
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....t of the Petitioner to fully and truly disclose all material facts necessary for the assessment year 1997-98. What is recorded is that the Petitioner has wrongly claimed certain deductions which he was not entitled to. There is a well known difference between a wrong claim made by an assessee after disclosing all the true and material facts and a wrong claim made by the assessee by withholding the material facts fully and truly. It is only in the latter case that the Assessing Officer would be entitled to proceed under Section 147. We are supported in this view by a decision of a Division Bench of this Court in Hindustan Level Ltd. v. R. B. Wadkar, Assistant Commissioner of Income Tax([2004] 268 ITR 0332) where in a similar case the Divisio....