TaxTMI 
TaxTMI 
TaxTMI 
2014 (7) TMI 307
X X X X Extracts X X X X
X X X X Extracts X X X X
....e following grounds:- "1. On the facts and in the circumstances of the case and in law the learned CIT(A) erred in upholding the action of the DCIT in re-opening the assessment under section 147. 2. On the facts and in the circumstances of the case and in law the learned CIT(A) erred in confirming the action of the Assessing Officer and directing him to verify and make an addition to the profit u/s 145A." 2. Facts in brief:- The assessee is a public limited company engaged in the manufacturing of textile, cement, chemicals, power generation, etc. For the assessment year 2002-03, the company has filed its return of income on 29th October 2002, declaring "nil" income under the normal provisions and under the provisions of section 115JB, bo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he letter dt. 28.10.2002 filed along with the return of income, the assessee stated that the profit for the year has been increased by an amount of Rs. 28,08,709/- filed along with the return of income the assessee stated that the profit for the year has been increased by an amount of Rs. 28,08,709 but prayed that in view of the order of the ITAT, Bombay in the case of S.H. Kelkar & Co. Ltd. v/s DCIT (Appeal no.9508 of 1991), the profit should not be increased by Rs. 28,09,719. In the computation of income too, filed along with the return of income the ass increased the total income by the same amount. However, while passing the order u/s 143(3) the Assessing Officer vide para-32 of the order, instead of sustaining the increase in profit o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 22. Since while passing the order u/s 143(3) the Assessing Officer vide para-32 of the order, instead of sustaining the increase in profit to 28,09,719 offered by the assessee in the computation of income, reduced the profit by Rs. 78,34,362 as per the tax audit report u/s 44AB, there has been underassessment of Rs. 1,06,44,081. The assessment is therefore, completed by increasing the assessed income vide order under section 143(3) dt. 30.03.2005 by Rs. 1,06,44,081." 4. Before the learned Commissioner (Appeals), the assessee again objected to the validity of re-opening under section 147, on various grounds, firstly, that re-opening cannot be made after the expiry of four years from the end of the relevant assessment year in this case, as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the re-opening cannot be held to be invalid. 6. Before us, the learned Counsel for the assessee submitted that all the particulars necessary for the assessment was duly disclosed in the tax audit report, audited financial statements and the statement of income filed along with the return of income. Not only this, the Assessing Officer, after a detail scrutiny of the records, has completed the assessment under section 143(3), in a detail manner. Thus, there cannot be any failure on the part of the assessee to disclose fully and truly all material facts, which is a condition precedent for re-opening the assessment in such cases. That apart, on a perusal of the reasons recorded, it can be seen that the Assessing Officer himself has stated th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... below and the material available on record. In this case, the assessment has been completed under section 143(3), vide order dated 30th March 2005, after detail scrutiny and examination of records, which is evident from the fact that the Assessing Officer had made additions on various counts and discussed the entire assessment in 83 pages. Not only this, the issue on which the reasons have been recorded (for re-opening the case beyond the period of four years), has also been discussed by the Assessing Officer in the original assessment order vide Para-32 of the order, wherein he has discussed the impact of MODVAT credit on account of deviation under section 145A. He has also taken note of assessee's objection of the adjustment made under s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly spell out what is the failure on the part of the assessee and it should provide direct link with the material brought on record and the income which has escaped assessment on the reason of failure on the part of the assessee. The limitation provided under the first proviso to section 147, is absolute and there is no escapement of limitation of four years unless the case falls within the saving clause as provided therein. The re-opening cannot be justified on the ground that notice under section 148, has been approved by a higher authority, as held by the learned Commissioner (Appeals). The jurisdiction can be acquired under the provision of the statute and not by sanction of any superior authority. As stated above, in the "reasons record....